Updates to Floodplain Management and Protection of Wetlands Regulations To Implement the Federal Flood Risk Management Standard, 56929-57046 [2024-15169]
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Federal Register / Vol. 89, No. 133 / Thursday, July 11, 2024 / Rules and Regulations
DEPARTMENT OF HOMELAND
SECURITY
Federal Emergency Management
Agency
44 CFR Part 9
[Docket ID FEMA–2023–0026]
RIN 1660–AB12
Updates to Floodplain Management
and Protection of Wetlands
Regulations To Implement the Federal
Flood Risk Management Standard
Federal Emergency
Management Agency, Department of
Homeland Security.
ACTION: Final rule.
AGENCY:
On October 2, 2023, the
Federal Emergency Management Agency
(FEMA) published a notice of proposed
rulemaking (NPRM) and supplementary
policy that proposed to implement the
Federal Flood Risk Management
Standard (FFRMS) and update the
agency’s 8-step decision-making process
for floodplain reviews by changing how
FEMA defines a floodplain with respect
to certain actions and how FEMA uses
natural systems, ecosystem processes,
and nature-based approaches when
developing alternatives to locating a
proposed action in the floodplain. After
a careful review of the public comments
received, FEMA is now issuing a final
rule that implements the proposed rule,
with some minor amendments.
DATES: This rule is effective September
9, 2024.
FOR FURTHER INFORMATION CONTACT:
Portia Ross, Policy and Integration
Division Director, Office of
Environmental Planning and Historic
Preservation, Resilience, DHS/FEMA,
400 C St. SW, Suite 313, Washington,
DC 20472–3020. Phone: (202) 709–0677;
Email: fema-regulations@fema.dhs.gov.
SUPPLEMENTARY INFORMATION:
SUMMARY:
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Contents
I. Executive Summary
A. Purpose of the Regulatory Action
B. Summary of the Notice of Proposed
Rulemaking (NPRM)
C. Summary of Changes From the NPRM to
the Final Rule
II. Background and Legal Authority
A. Executive Order 11988, ‘‘Floodplain
Management’’
B. Statutory Authority To Require FFRMS
Under FEMA Grant Programs
C. 44 CFR Part 9, ‘‘Floodplain Management
and Protection of Wetlands’’
D. Executive Order 13690, the Federal
Flood Risk Management Standard and
Subsequent Amendments to Executive
Order 11988, and Revisions to the 1978
Guidelines
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E. Substantive Components of the FFRMS
F. Summary of the 2023 Proposed Rule and
Proposed FFRMS Policy
G. Summary of FEMA’s Final Rule and
Updated Policy
III. Discussion of Public Comments and
FEMA’s Responses
A. Summary of Public Comments
B. Comments in Support of the Rule
C. Comments in General Opposition to the
Rule
D. FEMA’s Authority for Part 9 and
Revisions
E. Definitions
F. FFRMS Applicability
G. FFRMS Approaches
H. FEMA’s FFRMS Policy Approach
I. The FFRMS and Floodplain/Wetland
Determination Data
J. FFRMS Implementation
K. Emphasis on Nature-Based Approaches
L. Other 8-Step Process Comments
M. Other Comments
N. Accessibility
O. Regulatory Impact Analysis Comments
I. Executive Summary
A. Purpose of the Regulatory Action
The purpose of this regulatory action
is to finalize a rulemaking that will
improve the preparedness and resilience
of communities and Federal assets
against the increasing impacts of
flooding. All Federal agencies,
including FEMA, have long taken action
to reduce the risk of flood loss, to
minimize the impact of floods on
human safety, health, and welfare, and
to restore and preserve the natural and
beneficial values served by floodplains
when carrying out certain agency
functions. Federal agencies accomplish
this by applying the longstanding 8-step
decision-making process to any action
they take in floodplains to ensure they
avoid, to the extent possible, the longand short-term adverse impacts
associated with the occupancy and
modification of floodplains, and to
avoid direct or indirect support of
floodplain development wherever there
is a practicable alternative.
This framework was originally
established in 1977 by Executive Order
11988, ‘‘Floodplain Management,’’ (42
FR 26951) which was issued in
furtherance of the National
Environmental Policy Act of 1969
(NEPA) (42 U.S.C. 4321 et seq.), the
National Flood Insurance Act of 1968 as
amended (NFIA) (42 U.S.C. 4001 et
seq.), and the Flood Disaster Protection
Act of 1973, as amended (Flood Disaster
Protection Act) (Pub. L. 93–234, 87 Stat.
975). Executive Order 11988 was
supplemented by guidance called
‘‘Floodplain Management Guidelines’’
issued in 1978 by the U.S. Water
Resources Council (‘‘1978
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56929
Guidelines’’).1 FEMA implemented
Executive Order 11988 in 1980 through
the promulgation of regulations at 44
CFR part 9, ‘‘Floodplain Management
and Protection of Wetlands,’’ 2 which
applies the 8-step decision-making
process to all actions FEMA directly
takes and to all actions that it funds
through grants to eligible State, local,
Tribal, and territorial (SLTT)
governments, certain private nonprofits, and individuals and households
for pre- and post-emergency or disasterrelated projects.
The first step in the 8-step process is
to determine whether the action FEMA
proposes to take or fund will occur in
a floodplain or wetland.3 Section (6)(c)
of Executive Order 11988 defined the
term ‘‘floodplain’’ to mean, at a
minimum, ‘‘that area subject to a one
percent or greater chance of flooding in
any given year,’’ which is recognized as
the ‘‘base floodplain.’’ Executive Order
11988 and the base floodplain definition
remained unchanged from 1977 until
2015. In 2015, President Barack Obama
amended Executive Order 11988 by
adding a new flood risk reduction
standard to the existing 8-step decisionmaking process to improve the Nation’s
resilience against the increasing impacts
of flooding.4 The flood risk reduction
standard, called the Federal Flood Risk
Management Standard (FFRMS), is a
flexible framework to define the
floodplain that allows agencies to
choose among several approaches to
expand the base floodplain to a higher
vertical elevation and corresponding
horizontal extent for all Federally
1 42 FR 6030, Feb. 10, 1978. A PDF copy of the
1978 Guidelines can be found at this link: hud.gov/
sites/documents/DOC_14216.PDF (last accessed Jan.
24, 2024).
2 FEMA published an interim final rule on
December 27, 1979 (44 FR 76510) and a final rule
on September 9, 1980 (45 FR 59520). Note that this
part also implements a related Executive Order
11990, ‘‘Protection of Wetlands.’’ See 42 FR 26961,
May 25, 1977.
3 Any action FEMA takes in a floodplain or
wetland, including its provision of grants for
disaster assistance, undergoes an analysis pursuant
to Executive Orders 11988 and 11990 (unless the
action is specifically exempted from the
requirements of the Orders). The grant recipient,
therefore, generally provides information to FEMA
about the practicability of alternatives outside the
floodplain and wetland and other information to
assist in the analysis.
4 Executive Order 13690, ‘‘Establishing a Federal
Flood Risk Management Standard (FFRMS) and a
Process for Further Soliciting and Considering
Stakeholder Input.’’ 80 FR 6425, Feb. 4, 2015. In
2017, President Donald Trump revoked the
amendments to Executive Order 11988. See
Executive Order 13807, ‘‘Establishing Discipline
and Accountability in the Environmental Review
and Permitting Process for Infrastructure Project,’’
82 FR 40463, Aug. 24, 2017. In 2021, President
Joseph Biden reinstated the amendments. See
Executive Order 14030, ‘‘Climate Related Financial
Risk,’’ 86 FR 27967, May 25, 2021.
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funded projects. Federally funded
projects are defined as actions where
Federal funds are used for new
construction, substantial improvement,
or repairs to address substantial damage
to structures and facilities.5 The
amendments also direct agencies to use
natural systems, ecosystem processes,
and nature-based approaches when
developing alternatives to locating the
action in the floodplain. The Water
Resources Council then updated the
1978 Guidelines and issued the
‘‘Guidelines for Implementing Executive
Order 11988, Floodplain Management,
and Executive Order 13690,
‘Establishing a Federal Flood Risk
Management Standard and a Process for
Further Soliciting and Considering
Stakeholder Input’ ’’ (‘‘Revised
Guidelines’’) 6 to provide additional
information on the use of the FFRMS.
FEMA first partially implemented the
FFRMS in its grant programs through
policy using an interim approach that
applied higher elevation requirements
to eligible projects in existing
floodplains.7 FEMA then proposed to
fully implement the FFRMS in its
October 2, 2023 NPRM and
supplementary policy.8 FEMA proposed
to prioritize the use of the ClimateInformed Science Approach (CISA) in
its FFRMS implementation. The CISA
establishes the required vertical
elevation and corresponding horizontal
floodplain, through the best-available,
actionable hydrologic and hydraulic
data and methods that integrate current
and future changes in flooding based on
climate science, in accordance with the
Revised Guidelines. When such data is
5 See ‘‘Guidelines for Implementing Executive
Order 11998, Floodplain Management, and
Executive Order 13690, Establishing a Federal
Flood Risk Management Standard and a Process for
Further Soliciting and Considering Stakeholder
Input,’’ 80 FR 64008 (Oct. 22, 2015) (providing
notice of the availability of the Revised Guidelines
in the docket for the rulemaking at https://
www.regulations.gov/document/FEMA-2015-00060358 (main content) and https://
www.regulations.gov/document/FEMA-2015-00060372 (appendices)) also available at https://
www.fema.gov/sites/default/files/documents/fema_
implementing-guidelines-EO11988-13690_
10082015.pdf (last accessed Mar. 11, 2024).
6 80 FR 64008, Oct. 22, 2015.
7 See FEMA Policy 104–22–003, ‘‘Partial
Implementation of the Federal Flood Risk
Management Standard for Public Assistance
(Interim),’’ June 3, 2022, found at https://
www.fema.gov/sites/default/files/documents/fema_
fp-104-22-0003-partial-implemetnation-ffrms-painterim.pdf (last accessed Jan. 24, 2024) and FEMA
Policy 206–21–003–0001, ‘‘Partial Implementation
of the Federal Flood Risk Management Standard for
Hazard Mitigation Assistance Program,’’ Dec. 7,
2022 found at https://www.fema.gov/sites/default/
files/documents/fema_policy-fp-206-21-003-0001implementation-ffrms-hma-program_122022.pdf
(last accessed Jan. 24, 2024).
8 88 FR 67870, Oct. 2, 2023; 88 FR 67697, Oct.
2, 2023.
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not available, FEMA’s NPRM and
supplementary policy proposed the use
of other approaches depending on the
criticality of the action. FEMA also
proposed to require the use of natural
systems, ecosystem processes, and
nature-based approaches where
possible.
FEMA has authority to require
application of the FFRMS as a condition
of funding in its grant programs based
on the grant programs’ authorizing
statutes. Congress granted FEMA the
authority to provide Federal assistance
through multiple grant programs under
the Robert T. Stafford Disaster Relief
and Emergency Assistance Act (Stafford
Act),9 the NFIA,10 the Homeland
Security Act of 2002,11 the Federal Fire
Prevention and Control Act of 1974,12
the Earthquake Hazards Reduction Act
of 1977,13 and various other
appropriations acts. Under each of these
authorities, FEMA may set grant
eligibility criteria consistent with the
respective purposes of such programs
and FEMA’s mission, including to
protect Federal investments from the
risks of further damage.14 Under the
Stafford Act and the NFIA, which
authorize the programs that fund the
U.S.C. 5121 et seq.
U.S.C. 4001 et seq.
11 6 U.S.C. 101 et seq; see also 6 U.S.C. 314(a)(12),
which specifically charges the Administrator with
supervising various grant programs authorized
under the HSA. Such grant programs have long
been governed by floodplain management
regulations at 44 CFR part 9, see, e.g., 44 FR 76510
(Dec. 27, 1979), 45 FR 59520 (Sept. 9, 1980). See
also, e.g., 2 CFR 200.300(a) (directing Federal
awarding agencies to manage and administer
Federal awards in a manner so as to ensure that
Federal funding is expended and associated
programs are implemented in full accordance with
the U.S. Constitution, Federal Law, and public
policy requirements including, but not limited to,
those protecting public welfare and the
environment; and requiring the Federal awarding
agency to communicate to the non-Federal entity all
relevant public policy requirements, and
incorporate them either directly or by reference in
the terms and conditions of the Federal award.).
12 15 U.S.C. 2229 and 2229a.
13 42 U.S.C. 7701 et seq.
14 See, e.g., 6 U.S.C. 609 (granting FEMA approval
authority over grant funds for construction awards
under its Homeland Security Grant Program, State
Homeland Security Grant Program, Urban Area
Security Initiative, Operation Stonegarden, Tribal
Homeland Security Grant Program, and Nonprofit
Security Grant Program); 6 U.S.C. 1182(d)(1)
(granting DHS the authority to determine the grant
requirements for the Intercity Bus Security Grant
Program); 6 U.S.C. 1163(c)(1) (granting FEMA the
authority to determine the grant requirements for
the Intercity Passenger Rail grant program); 46
U.S.C. 70101 (granting DHS approval authority over
grant funds for construction awards under the Port
Security Grant Program); 6 U.S.C. 1135(c)(1)
(granting DHS the authority to determine the grant
requirements for the Transit Security Grant
Program); 33 U.S.C. 467f–2(c)(2)(A) (granting FEMA
the authority to set the minimum eligibility
requirements for the Rehabilitation of High Hazard
Dam Program).
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10 42
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majority of the actions subject to the
FFRMS, FEMA has general rulemaking
authority.15 Further, FEMA has explicit
authority under the Stafford Act to set
the minimum standards for safe land
use and construction standards required
in the repair or construction of private
and public facilities.16
This rule is an important first step
toward mitigating future flood risk that
will ultimately benefit communities by
allowing them to recover from future
disasters more efficiently and
effectively. The United States is
experiencing increased flooding and
flood risk from changing conditions.17
The full extent of future changes in
flood risk has not yet been estimated
across the full inventory of Federal,
State, local, Tribal, and territorial
properties. However, in a survey of
Federal properties alone, an assessment
identified over 40,000 individual
Federal buildings and structures with a
combined replacement cost of $81
billion (in 2020 dollars) located in the
current 1 percent floodplain and
approximately 160,000 structures with a
total replacement cost of $493 billion (in
2020 dollars) located in the current 0.2
percent floodplain.18 Approximately
10,250 individual Federal buildings and
structures were identified in coastal
areas with a combined replacement cost
of $32.3 billion that would be severely
impacted by an eight-foot sea-level rise
scenario and over 12,195 individual
Federal buildings and structures were
identified with a combined replacement
cost of over $43.7 billion under a tenfoot ‘‘worst case’’ sea level rise
scenario.19 The Federal fiscal exposure
presented above can be reduced by
enhancing resilience. This final rule
will enhance resilience by ensuring that
actions subject to the FFRMS are
designed to be resilient to both current
and future flood risks to minimize the
impact of floods on human health,
safety, and welfare and to protect
Federal investments by reducing the
risk of flood loss.
15 See
42 U.S.C. 5164; 42 U.S.C. 4128(a) and (b).
U.S.C. 5165a(a)(1)–(2).
17 As a result of climate change, flood events are
on the rise. Climate change is increasing flood risk
through (1) more ‘‘extreme’’ rainfall events,’’ caused
by a warmer atmosphere holding more water vapor
and changes in regional precipitation patterns; and
(2) sea-level rise. See Rob Bailey, Claudio Saffioti,
and Sumer Drall, Sunk Costs: The Socioeconomic
Impacts of Flooding 3 and 8, Marsh McLennan
(2021).
18 Federal Budget Exposure to Climate Risk. OMB
Assessment found https://www.whitehouse.gov/wpcontent/uploads/2022/04/ap_21_climate_risk_
fy2023.pdf (last accessed Jan. 24, 2024).
19 Id.
16 42
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B. Summary of the Notice of Proposed
Rulemaking (NPRM)
On October 2, 2023, FEMA published
the NPRM ‘‘Updates to Floodplain
Management and Protection of Wetlands
Regulations to Implement the Federal
Flood Risk Management Standard.’’ 20
FEMA also published ‘‘FEMA Proposed
Policy: Federal Flood Risk Management
Standard (FFRMS)’’ with the proposed
rule.21 The proposed rule sought to
change how FEMA defines a floodplain
with respect to certain actions taken by
the agency and require that FEMA use
natural systems, ecosystem process, and
nature-based approaches, where
possible, when developing alternatives
to locating a proposed agency action in
the floodplain.
The FFRMS is a flood resilience
standard that is required for Federally
funded projects and provides a flexible
framework to increase resilience against
flooding and help preserve the natural
values of floodplains and wetlands. For
actions subject to the FFRMS, the NPRM
proposed to update the definition of
‘‘floodplain’’ to the definition used in
the Revised Guidelines, which allows
the agency to establish the floodplain
using any of the following three
approaches or a fourth approach
resulting from any other method in an
update to the FFRMS:
• Approach 1: Climate-Informed
Science Approach (CISA): Utilizing the
best-available, actionable hydrologic
and hydraulic data and methods that
integrate current and future changes in
flooding based on climate science;
• Approach 2: Freeboard Value
Approach (FVA): The elevation and
corresponding horizontal floodplain
that result from using the freeboard 22
20 88
FR 67870, Oct. 2, 2023.
FR 67697, Oct 2, 2023.
22 Freeboard is a factor of safety usually expressed
in feet above a flood level for purposes of floodplain
value, reached by reached by adding 2
feet to the base flood elevation (BFE) for
non-critical actions (+2’ FVA) and from
adding 3 feet to the BFE for critical
actions (+3’ FVA).
• Approach 3: 0.2-percent-annualchance Flood Approach (0.2PFA): 0.2
percent annual chance flood (also
known as the 500-year flood); or
• Approach 4: the elevation and flood
hazard area that result from using any
other method identified in an update to
the FFRMS.
In many cases, each of these
approaches would result in a larger
floodplain and a requirement to design
projects to be resilient at a higher
vertical elevation. For actions that do
not meet the definition of an action
subject to the FFRMS, FEMA would
continue to use the historical floodplain
definition, with minor clarifying
revisions to help stakeholders better
understand the terminology. The NPRM
further proposed the use, where
possible, of natural systems, ecosystem
processes, and nature-based approaches
in the development of alternatives for
all actions proposed in a floodplain.
FEMA proposed other edits to 44 CFR
part 9, including edits to clarify the
applicability of 44 CFR part 9 to specific
FEMA programs and update the
monetary thresholds in § 9.5, edits to
incorporate the use of the internet in
public notice requirement in § 9.8, edits
to consolidate temporary housing
requirements in § 9.13, and other
clarifying edits to update citations and
remove outdated terminology.
C. Summary of Changes From the NPRM
to the Final Rule
In this final rule, FEMA adopts the
changes proposed in the NPRM and
FFRMS policy with clarifications in
consideration of the relevant comments.
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21 88
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management. See https://www.fema.gov/glossary/
freeboard (last accessed June 11, 2024).
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Consistent with comments received,
FEMA’s edits in this final rule add a
Federal agency (the National Park
Service) to the best available
information sources list and incorporate
the use of Indigenous Knowledge by
adding Indian Tribal governments to
that list. The best available information
sources list appears at 44 CFR 9.7(c)(3).
The list is a non-exhaustive list of
resources that FEMA may use to make
floodplain determinations. Additional
clarifying edits are included in §§ 9.5
and 9.7. The edits to the FFRMS policy
accompanying this final rule clarify the
use of the 0.2PFA in coastal areas and
clarify FEMA’s use of the Federal Flood
Risk Management Floodplain
Determination Job Aid (FFRMS Job
Aid). FEMA describes these changes in
detail below.
D. Impacts of the Final Rule
FEMA estimated the total impacts of
this rule by analyzing the impact of the
FVA, 0.2PFA and CISA for FEMA’s
Public Assistance (PA), Individual
Assistance (IA), and Hazard Mitigation
Assistance (HMA) grant programs.
FEMA did so by examining the number
of projects that would be subject to the
proposed requirements in the first 10
years after the rule’s publication.23
FEMA’s analysis focused on the costs,
benefits, and transfer payments (i.e.,
impacts on FEMA grants) that would
result over a 50-year period from
applying the requirements of the rule to
those projects, for a total period of
analysis spanning 60 years. Tables 1 and
2 show the total impacts under the three
approaches for each of the affected
programs.
BILLING CODE 9111–66–P
23 FEMA used an average of the number of
affected projects during the prior 10-year period to
estimate the average annual impacts of the future
10-year period.
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Ta hie l: Summarv 0(60-Year Costs, hans/ers, and Benefits by Approach and Pmgram fhr Afjected Projects in rt'ars
1-10 (l,mr r,:stimate, 2022$/
CISA
(prima
ry) (+5ft
PA
IA
HMA
FVA
O.2PFA
FEMA
Admin
Not
Quanti
fied
CISA
Total
(prima
ry) (+5ft
PA
IA
$149,215,620
$127,283,949
$4,599,146
$104,802,806
$7,465,023
$104,341,798
$1,681,740
$89,005,671
$1,434,557
$3,216,038
$51,835
$73,285,315
$1,181,184
$5 220,056
$84,135
$43,192,063
$36,843,704
$1,331,272
$30,336,295
$2,160,831
$756,606,840
$43,407,580
$645,400,983
$37,027,545
$23,320,247
$1,337,915
$531,408,984
$30 487,667
$37,851,850
$2,171,613
$7,752,811
$6,700,641
$242,114
$5,617,336
$400,118
Not Estimated: Increased resilience standard for approximately 26,985 facility projects over
IO years, Additional costs for Adding Requirements to Buildings with Basements, Diversion
of Projects Out of the Floodplain, Lifecycle maintenance costs for tloodproofing, and Project
Dela sand For one Pro'ects
$122,766,330
$88,690,530
$1 681,740
$104,722,168
$75,654,821
$1 434,557
$3,783,922
$2,733,633
$51,835
$86,225,934
$62,292,516
$1,181,184
$6,141,806
$4,437,048
$84,135
$32,394,060
$27,632,790
$998,454
$22,752,232
$1,620,624
$50,748,250
$43,289,287
$1,564,170
$35,643,448
$2,538,855
$65,817,290
$56,143,482
$2,028,630
$46,227,310
$3,292,735
HMA
FVA
Total
0.2PFA
PA
(CISA,
primar
y) (+1ft)
Not
Quanti
fied
24 To obtain the total costs as in Section 7.12, add
each individual approach to the FEMA admin cost.
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For example, CISA + FEMA admin = total CISA
cost.
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Not Estimated: Damage Avoidance for approximately 12,322 IA and HMA structure projects
and 26,985 PA and HMA facility projects over 10 years, Potential Lives Saved, Increased
Public Health and Safety, Decreased Cleanup Time, Protection of Critical Facilities,
Reduction of Personal and Comm uni Im acts
* FEMA focused its analysis on the projects impacted in the first 10 years after the rule's publication.
FEMA considered the resulting costs, benefits, and transfer payments of the proposed rule on those projects
over a 50-year period, for a total of 60 years. The costs and transfers occur in the first 10 years of the 60year period because that is when the initial investment to elevate or floodproofthem to meet the proposed
requirements takes place. This is an upfront cost that occurs when the project is constructed. However, the
benefits of the proposed rule are realized over the 50-year useful life of the affected structures.
Federal Register / Vol. 89, No. 133 / Thursday, July 11, 2024 / Rules and Regulations
56933
Tuhlc :!: S11111111arv of6U-Ycar Costs, hansfi'rs, and lk11c/its by Approach and Program/or Affected Projects in Years
I-IO (High fatimatc. W22$J
IA
HMA
FVA
0.2PFA
FEMA
Admin
Not
Quantifie
d
Total
(primary)
+5-ft
PA
IA
HMA
FVA
Total
0.2PFA
PA
(CISA,
primary)
+I-ft
Not
Quantifie
d
$189,853,700
$161,949,055
$5,851,699
$133,345,292
$9,498,082
$144,979,878
$1,681,740
$43,192 063
$74,555,130
$51,081,940
$123,670 781
$1,434,557
$36,843,704
$63,597,039
$43,573,931
$4,468,591
$51,835
$1,331,272
$2,297,949
$1,574,455
$101,827,801
$1,181,184
$30,336,295
$52,364,403
$35,877,816
$7 253,115
$84,135
$2,160,831
$3,729,876
$2,555,549
$9,093,061
$7,843,901
$283,423
$6,558,671
$467,169
Not Estimated: Increased resilience standard for approximately 26,985 facility projects
over IO years, Additional costs for Adding Requirements to Buildings with Basements,
Diversion of Projects Out of the Floodplain, Lifecycle maintenance costs for
$157,308,700
$123,232,900
$ I ,681,740
$32,394,060
$134,187,512
$105,120,163
$1,434,557
$27,632,790
$4,848,592
$3,798,303
$51,835
$998,454
$110,487,049
$86,553,631
$1,181,184
$22,752,232
$7,869,907
$6,165,148
$84,135
$1,620,624
$61,609,580
$52,554,220
$1,898,939
$43,271,991
$3,082,230
$77,506,550
$66,114,661
$2,388,918
$54,437,358
$3,877,53
1
Table 3 provides the estimated
number of structures and facilities
affected by the rule over the first 10
years, assuming that each approach is
the only expansion option. Structures,
which are walled and roofed buildings,
would comply with the FFRMS through
elevating or floodproofing to the
required height. Facilities, which are
any human-made or human-placed
items other than a structure such as
roads and bridges, would require
different mitigation measures to comply
with the increased resilience standard.
25 To obtain the total costs as in Section 7.12, add
each individual approach to the FEMA admin cost.
For example, CISA + FEMA admin = total CISA
cost.
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The monetized impacts of this rule are
representative of the floodproofing and
elevation mitigation measures that are
required of structures. However, for
reasons explained in more detail later,
FEMA was unable to monetize the
impacts of the rule for facilities.
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Not Estimated: Damage Avoidance for approximately 12,322 IA and HMA structure
projects and 26,985 PA and HMA facility projects over 10 years, Potential Lives Saved,
Increased Public Health and Safety, Decreased Cleanup Time, Protection of Critical
Facilities, Reduction of Personal and Comm uni Im acts
* FEMA focused its analysis on the projects impacted in the first 10 years after the rule's publication.
FEMA considered the resulting costs, benefits, and transfer payments of the proposed rule on those projects
over a 50-year period, for a total of 60 years. The costs and transfers occur in the first 10 years of the 60year period because that is when the initial investment to elevate or floodproofthem to meet the proposed
requirements takes place. This is an upfront cost that occurs when the project is constructed. However, the
benefits of the proposed rule are realized over the 50-year useful life of the affected structures.
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Table 3: E1'timated Number q(Structures and Facilities Affected by the Final Rule in Years
!l Each Approach Were the On~y Expansion Option 26
1,434
688
1,434
1,154
1,924
0.2PFA
CISA
BILLING CODE 9111–66–C
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Quantified estimates of the benefits of
this rule are available for only nonresidential PA Category E projects,
which are for structures. Due to the
project-specific nature of facilities
projects and numerous options for
making them resilient, FEMA could not
estimate the costs of improving flood
resilience of facilities.27 Table 2 shows
that the total 60-year benefits for nonresidential PA Category E projects in the
first 10 years is $54.4 million (7
percent). This benefit is for adding one
foot of freeboard, assuming a 59-inch
sea level rise (SLR).28 Although the cost
for PA Category E projects is $133.3
million, this cost represents 5 feet of
freeboard (FEMA’s assumption for
CISA).29 FEMA does not have data to
quantify the benefits of additional
freeboard and thus the quantified
benefits represent only a portion of the
increased risk reduction that would be
achieved through this rule. Ensuring
projects are built to the height necessary
to avoid additional loss scenarios would
provide additional unquantified benefits
of avoided damages to the structure,
decreased cleanup time and disruption
to the community, and increased public
health and safety. Moreover, FEMA’s
use of CISA as its preferred approach
26 These counts are based on the number of closed
or obligated projects at the time of analysis. It can
take several years for a project to close out or reach
the obligation status after the disaster year.
27 Category E projects are public buildings and
contents. See Public Assistance Fact Sheet at
https://www.fema.gov/sites/default/files/2020-07/
fema_public-assistance-fact-sheet_10-2019.pdf.
28 FEMA used one foot for benefits as the 2022
report, ‘‘A Benefits Analysis of Increased Freeboard
for Public and Nonresidential Buildings in Riverine
and Coastal Floodplains,’’ only specifies monetary
benefits for an additional one foot over current
requirements. FEMA included this number in the
quantified benefits because it is the only monetary
benefit available for any freeboard level.
A Benefits Analysis of Increased Freeboard for
Public and Nonresidential Buildings in Riverine
and Coastal Floodplains. FEMA. Draft, July 2022,
page 16. Available at: https://www.regulations.gov/
document/FEMA-2023-0026-0003.
29 Costs for the FVA may be a better comparison
because they represent 2 or 3 feet of freeboard,
depending on criticality. However, the number of
projects using FVA and CISA differ, making such
a comparison difficult.
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7,755
7,712
10,398
Fin· Each Approach as
10,088
26,144
841
26,985
37,073
9,834
26,144
841
26,985
36,819
13,476
26,144
841
26,985
40,461
would use the best available and
actionable scientific data to tailor future
flooding risk to each project ensuring
that projects are built only to the height
necessary and thus maximizing net
benefits. Accordingly, FEMA believes
the benefits of the rule—quantified and
unquantified—would justify its costs.
II. Background and Legal Authority
The President issued Executive Order
11988 (42 FR 26951, May 25, 1977) as
amended by Executive Order 13690,
‘‘Establishing a Federal Flood Risk
Management Standard (FFRMS) and a
Process for Further Soliciting and
Considering Stakeholder Input,’’ (80 FR
6425, Feb. 4, 2015) and Executive Order
14030, ‘‘Climate-Related Financial
Risk,’’ (86 FR 27967, May 25, 2021) in
furtherance of the NFIA (42 U.S.C. 4001
et seq.); the Flood Disaster Protection
Act of 1973, as amended (Pub. L. 93–
234, 87 Stat. 975); and the NEPA (42
U.S.C. 4321 et seq.). Each agency is
responsible for implementing Executive
Order 11988, as amended, as allowed by
and consistent with applicable law
within their existing statutory
authorities.30
Section II.A below describes
Executive Order 11988, the 1978
Guidelines, and the statutory authority
underlying the Executive Order.
Executive Order 11988, along with the
1978 Guidelines, established an 8-step
decision-making process by which
Federal agencies carry out Executive
Order 11988’s direction to avoid the
long- and short-term adverse impacts
associated with the occupancy and
modification of the floodplain, and
avoid the direct or indirect support of
floodplain development whenever there
is a practicable alternative.
Next, Section II.B describes FEMA’s
statutory authority to require its grant
recipients to carry out repairs or
construction in accordance with specific
standards. Section II.C describes
FEMA’s implementing regulations at 44
CFR part 9, which closely follow the
model decision-making process under
Executive Order 11988. Section II.D
describes the development of Executive
Order 13690, the FFRMS, and
additional guidance in the Revised
Guidelines issued in 2015, as well as
subsequent amendments to Executive
Order 11988. Section II.E describes the
substantive components of the FFRMS.
Section II.F. describes FEMA’s NPRM
and supplementary policy
implementing the FFRMS.
A. Executive Order 11988, ‘‘Floodplain
Management’’
The President issued Executive Order
11988 (42 FR 26951, May 25, 1977) in
furtherance of the NFIA (42 U.S.C. 4001
et seq.); the Flood Disaster Protection
Act of 1973, as amended (Pub. L. 93–
234, 87 Stat. 975); and the NEPA (42
U.S.C. 4321 et seq.). The NFIA, as
amended by the Flood Disaster
Protection Act establishes a multipurpose program to provide flood
insurance, minimize exposure of
property to flood losses, minimize the
damage caused by flood losses, and
guide the development of proposed
construction, where practicable, away
from floodplains.31 The NFIA and the
Flood Disaster Protection Act highlight
coordination of flood insurance with
land management programs in floodprone areas. NEPA requires Federal
agencies to analyze the reasonably
foreseeable environmental effects of
proposed major Federal actions and
evaluate a reasonable range of
alternatives to those actions, which
includes the evaluation of the impacts
of proposed actions in floodplains.32
NEPA mandates that agencies ‘‘attain
the widest range of beneficial uses of the
environment without degradation, risk
to health or safety, or other undesirable
and unintended consequences.’’ 33
In furtherance of and consistent with
this statutory foundation, Executive
Order 11988 directs Federal agencies to
avoid, to the extent possible, the long31 See
42 FR 26951, May 25, 1977 at Section 2(d);
see also 80 FR 6425, Feb. 4, 2015 at Section 5(b).
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42 U.S.C. 4001 and 4102.
42 U.S.C. 4332(2)(C).
33 See 42 U.S.C. 4331(b)(3).
32 See
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and short-term adverse impacts
associated with the occupancy and
modification of floodplains, where there
is a practicable alternative. The
Executive Order directs each Federal
agency to provide leadership and take
action to reduce the risk of flood loss,
to minimize the impact of floods on
human safety, health, and welfare, and
to restore and preserve the natural and
beneficial values served by floodplains
in carrying out its responsibilities for:
(1) acquiring, managing, and disposing
of Federal lands and facilities; (2)
providing federally undertaken,
financed, or assisted construction and
improvements; and (3) conducting
Federal activities and programs affecting
land use, including but not limited to
water and related land resources
planning, regulating, and licensing
activities. Each agency has a
responsibility to evaluate the potential
effects of any actions it may take in a
floodplain; to ensure that its planning,
programs, and budget requests reflect
consideration of flood hazards and
floodplain management; and to
prescribe procedures to implement the
policies and requirements of the
Executive Order.
To meet this direction, each agency,
before taking an action, must determine
whether the proposed action will occur
in a floodplain.34 Section (6)(c) of
Executive Order 11988 defined the word
‘‘floodplain’’ to mean ‘‘the lowland and
relatively flat areas adjoining inland and
coastal waters including floodprone
areas of offshore islands, including at a
minimum, the area subject to a one
percent or greater chance of flooding in
any given year.’’ 35 If the action will
occur in a floodplain, the agency must
consider alternatives to avoid adverse
effects and incompatible development
in the floodplain. If the agency finds
that the only practicable alternative
requires the action to occur in the
floodplain, the agency must, prior to
taking the action, design or modify the
action to minimize potential harm to or
within the floodplain. Additionally, the
agency must prepare and circulate a
notice explaining why the proposed
action is located in the floodplain.
Particularly relevant to FEMA, the
Executive Order also requires agencies
34 Any action FEMA takes in a floodplain,
including its provision of grants for disaster
assistance, undergoes an analysis pursuant to
FEMA’s implementation of Executive Order 11988
(unless the action is specifically exempted from the
requirements of the Order and the implementing
regulations). The grant recipient, therefore,
generally provides information to FEMA about the
practicability of alternatives outside the floodplain
and other information to assist in the analysis.
35 This is also referred to as the ‘‘100–year
floodplain’’ or the ‘‘base floodplain.’’
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to provide appropriate grant funding
guidance to applicants to encourage
them to evaluate the effects of their
proposals in floodplains, prior to
submitting grant applications.
Executive Order 11988 directs
agencies to prepare implementing
procedures in consultation with the
Water Resources Council (WRC),36
FEMA, and the Council on
Environmental Quality (CEQ). As noted,
the WRC issued the 1978 Guidelines,
the authoritative interpretation of
Executive Order 11988.37 The 1978
Guidelines provided a section-bysection analysis, defined key terms, and
outlined an 8-step decision-making
process for carrying out the directives of
Executive Order 11988.
B. Statutory Authority To Require
FFRMS Under FEMA Grant Programs
FEMA has authority to require
application of the FFRMS as a condition
of funding in its grant programs based
on the grant programs’ authorizing
statutes. Congress granted FEMA the
authority to provide Federal assistance
through multiple grant programs under
the Stafford Act,38 the NFIA,39 the
Homeland Security Act of 2002,40 the
36 The WRC, established by statute (42 U.S.C.
1962a–1), is charged with maintaining a continuing
study and preparing an assessment biennially, or at
such less frequent intervals as the Council may
determine, of the adequacy of supplies of water
necessary to meet the water requirements in each
water resource region in the United States and the
national interest therein; and maintaining a
continuing study of the relation of regional or river
basin plans and programs to the requirements of
larger regions of the Nation and of the adequacy of
administrative and statutory means for the
coordination of the water and related land resources
policies and programs of the several Federal
agencies. It is responsible for appraising the
adequacy of existing and proposed policies and
programs to meet such requirements and making
recommendations to the President with respect to
Federal policies and programs.
37 42 FR 6030, Feb. 10, 1978. A PDF copy of the
1978 Guidelines can be found at this link: hud.gov/
sites/documents/DOC_14216.PDF (last accessed Jan.
24, 2024).
38 42 U.S.C. 5121 et seq.
39 42 U.S.C. 4001 et seq.
40 6 U.S.C. 101 et seq; see also 6 U.S.C. 314(a)(12),
which specifically charges the Administrator with
supervising various grant programs authorized
under the HSA. Such grant programs have long
been governed by floodplain management
regulations at 44 CFR part 9, see, e.g., 44 FR 76510
(Dec. 27, 1979), 45 FR 59520 (Sept. 9, 1980). See
also, e.g., 2 CFR 200.300(a) (directing Federal
awarding agencies to manage and administer
Federal awards in a manner so as to ensure that
Federal funding is expended and associated
programs are implemented in full accordance with
the U.S. Constitution, Federal Law, and public
policy requirements including, but not limited to,
those protecting public welfare and the
environment; and requiring the Federal awarding
agency to communicate to the non-Federal entity all
relevant public policy requirements, and
incorporate them either directly or by reference in
the terms and conditions of the Federal award.).
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56935
Federal Fire Prevention and Control Act
of 1974,41 the Earthquake Hazards
Reduction Act of 1977,42 and various
other appropriations acts. Under each of
these authorities, FEMA may set grant
eligibility criteria consistent with the
respective purposes of such programs
and FEMA’s mission, including to
protect Federal investments from the
risks of further damage.43
Congress enacted the Stafford Act 44 to
‘‘provide an orderly and continuing
means of assistance’’ to State and local
governments in carrying out their
responsibilities to alleviate the suffering
and damage that result from disasters
by, among other responsibilities,
‘‘encouraging hazard mitigation
measures to reduce losses from
disasters, including the development of
land use and construction regulations’’
and ‘‘identifying the climate and natural
hazard resilience of vulnerable
communities.’’ 45 FEMA has general
authority under the Stafford Act to
‘‘prescribe such rules and regulations as
may be necessary and proper to carry
out the provisions of [the Stafford Act],
and may exercise, either directly or
through such Federal agency as the
President may designate, any power or
authority conferred to the President by
[the Stafford Act].’’ 46 The Stafford Act
further grants FEMA explicit authority
to set the minimum standards for safe
land use and construction standards
required in the repair or construction of
private and public facilities.47
Congress enacted the NFIA to
authorize a flood insurance program
which is designed to ‘‘promote the
public interest by providing appropriate
protection against the perils of flood
losses and encouraging sound land use
by minimizing exposure of property to
41 15
U.S.C. 2229 and 2229a.
U.S.C. 7701 et seq.
43 See, e.g., 6 U.S.C. 609 (granting FEMA approval
authority over grant funds for construction awards
under its Homeland Security Grant Program, State
Homeland Security Grant Program, Urban Area
Security Initiative, Operation Stonegarden, Tribal
Homeland Security Grant Program, and Nonprofit
Security Grant Program); 6 U.S.C. 1182(d)(1)
(granting DHS the authority to determine the grant
requirements for the Intercity Bus Security Grant
Program); 6 U.S.C. 1163(c)(1) (granting FEMA the
authority to determine the grant requirements for
the Intercity Passenger Rail grant program); 46
U.S.C. 70101 (granting DHS approval authority over
grant funds for construction awards under the Port
Security Grant Program); 6 U.S.C. 1135(c)(1)
(granting DHS the authority to determine the grant
requirements for the Transit Security Grant
Program); 33 U.S.C. 467f-2(c)(2)(A) (granting FEMA
the authority to set the minimum eligibility
requirements for the Rehabilitation of High Hazard
Dam Program).
44 42 U.S.C. 5121 et seq.
45 42 U.S.C. 5121(b)(5) and (7).
46 42 U.S.C. 5164.
47 42 U.S.C. 5165a(a)(1)–(2).
42 42
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flood losses’’ and the objectives of
which should be ‘‘integrally related to a
unified national program for flood plain
management.’’ 48 FEMA has general
authority under the NFIA to ‘‘issue such
regulations as may be necessary’’ to
carry out its provisions.49 Section 404 of
the NFIA grants FEMA the authority to
provide flood mitigation grant funding
and requires the activities funded to be
consistent with floodplain management
criteria developed by the
Administrator.50
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C. 44 CFR Part 9, ‘‘Floodplain
Management and Protection of
Wetlands’’
Consistent with the NFIA, the Flood
Disaster Protection Act, and NEPA,
FEMA promulgated regulations
implementing Executive Order 11988 at
44 CFR part 9, ‘‘Floodplain Management
and Protection of Wetlands.’’ 51 Part 9
closely follows the 1978 Guidelines in
setting forth FEMA’s policy and
procedures for floodplain management
relating to disaster planning, response
and recovery, and hazard mitigation.
Part 9 generally applies to FEMA
actions, including FEMA direct actions
and FEMA’s disaster and non-disaster
48 42 U.S.C. 4001(c). As part of the floodplain
management program under the NFIP, FEMA
establishes minimum floodplain management
criteria, and communities that participate in the
NFIP must adopt and enforce floodplain
management regulations that incorporate the
minimum criteria. 44 CFR 59.2(b), 59.22(a)(3),
60.1(d). FEMA has determined that it is consistent
with the purposes of the NFIA to allow
communities to adopt more comprehensive
floodplain management regulations that exceed the
minimum requirements. 44 CFR 60.1(d). Similarly,
in its implementation of Executive Order 11988,
FEMA prohibits taking any action taken unless it
is consistent with the NFIP minimum criteria or any
more restrictive Federal, State or local floodplain
management standards. 44 CFR 9.11(d)(6).
49 42 U.S.C. 4128(a).
50 42 U.S.C. 4104c and 4102. Please note this
rulemaking does not alter the minimum floodplain
management criteria that communities adopt to
participate in the NFIP. The NFIP is a program
through which property owners in participating
communities can purchase Federal flood insurance
as a protection against flood losses. 42 U.S.C.
4011(a). As a condition of eligibility, a community
must adopt and enforce floodplain management
regulations that incorporate NFIP minimum
floodplain management criteria developed by the
Administrator. 42 U.S.C. 4011(a) and (b); 42 U.S.C.
4102; 44 CFR 59.2(b), 59.22(a)(3), 60.1(d). Further
information regarding FEMA’s minimum floodplain
management standards for the NFIP can be found
at 44 CFR part 59 et seq. Because this rule only
applies to actions subject to the FFRMS, this rule
does not change any FEMA standards applicable to
community or individual participation in any
aspect of the NFIP. In general, changes to 44 CFR
part 59 et seq. would require a rulemaking to revise
the appropriate sections of the CFR.
51 FEMA published an interim final rule on
December 27, 1979 (44 FR 76510) and a final rule
on September 9, 1980 (45 FR 59520). Note this part
also implements a related Executive Order 11990,
‘‘Protection of Wetlands.’’ See 42 FR 26961, May 25,
1977.
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assistance programs.52 Pursuant to
section 8 of Executive Order 11988, part
9 does not apply to assistance provided
for emergency work essential to save
lives and protect property and public
health and safety, performed pursuant
to sections 403 and 502 of the Stafford
Act, as amended (42 U.S.C. 5170b and
5192). In addition, FEMA applies part 9
programmatically to the National Flood
Insurance Program (NFIP).53 FEMA does
not apply part 9 to site-specific actions
under the NFIP because the
establishment of programmatic criteria,
rather than the application of the
programmatic criteria to individual
situations, is the action with the
potential to influence or affect
floodplains.54
Part 9 outlines FEMA’s 8-step
decision-making process for conducting
floodplain management reviews before
performing certain actions, including
approval of grant funding. The 8-step
decision making process is:
(1) Determine whether the proposed
action is located in a wetland or
floodplain and its potential to affect or
be affected by a wetland or floodplain;
(2) Notify the public of the intent to
carry out the proposed action within or
affecting a wetland or floodplain, and
involve the affected and interested
public in the decision-making process;
(3) Identify and evaluate practicable
alternatives to locating the proposed
action in a floodplain or wetland,
including alternative sites, actions, and
the ‘‘no action’’ option;
(4) Identify the potential direct and
indirect impacts associated with the
occupancy or modification of
floodplains and wetlands and the
potential direct and indirect support of
floodplain and wetland development
that could result from the proposed
action;
(5) Minimize the proposed action’s
potential adverse impacts and support
to or within the floodplains and
wetlands identified under Step 4;
(6) Re-evaluate the proposed action
and other practicable alternatives
identified in step 3 based on new
information gained in steps 4 and 5;
52 44 CFR 9.4 defines the actions subject to the
requirements, which include federal lands and
facilities, providing federal funds for construction
and improvements, and conducting activities or
programs that affect land use.
53 A complete list of FEMA programs to which
Part 9 does not apply appears at 44 CFR 9.5. The
exemption for actions under the NFIP is located at
44 CFR 9.5(f).
54 For example, Part 9 requires FEMA to apply the
8-step process to a programmatic determination of
categories of structures to be insured but does not
require FEMA to apply an 8-step review to a
determination of whether to insure each individual
structure. See 44 CFR 9.5(g).
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(7) Inform the public of any final
decision that the floodplain or wetland
is the only practicable alternative; and
(8) Implement the action.
There are certain exclusions from all
or some of the 8-steps for certain
categories of actions being funded by
FEMA.55
D. Executive Order 13690, the Federal
Flood Risk Management Standard and
Subsequent Amendments to Executive
Order 11988, and Revisions to the 1978
Guidelines
On January 30, 2015, the President
issued Executive Order 13690,
‘‘Establishing a Federal Flood Risk
Management Standard (FFRMS) and a
Process for Further Soliciting and
Considering Stakeholder Input.’’ 56
Executive Order 13690 amended
Executive Order 11988 and established
the FFRMS. It required FEMA to
publish an updated version of the 1978
Guidelines (revised to incorporate the
changes required by Executive Order
13690 and the FFRMS) in the Federal
Register for notice and comment.
Executive Order 13690 also required the
WRC to issue final Guidelines to
provide guidance to agencies on the
implementation of Executive Order
11988, as amended, consistent with the
FFRMS. FEMA, acting on behalf of the
Mitigation Framework Leadership
Group (MitFLG), published a Federal
Register notice for a 60-day notice and
comment period seeking comments on a
draft of the Revised Guidelines on
February 5, 2015.57 FEMA received over
556 separate submissions.58 The final
Revised Guidelines were issued on
October 8, 2015.59
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
55 44
CFR 9.5(c), (d), (e), and (g).
FR 6425, Feb. 4, 2015. Section 5(c) of
Executive Order 13690 specifically states that the
order ‘‘is not intended to, and does not, create any
right or benefit, substantive or procedural,
enforceable at law or in equity by any party against
the United States, its departments, agencies, or
entities, its officers, employees, or agents, or any
other person.’’
57 80 FR 6530, Feb. 5, 2015.
58 FEMA received approximately 556 separate
submissions, which raised over 2700 separate
issues and positions. Written comments were
received at a series of eight in-person listening
sessions across the country (135 submissions);
verbal comments were shared during the public
comment periods of these same listening sessions
(74 commenters); comments were submitted
through the FFRMS email address (20 submissions);
comments were submitted through regulations.gov
(326 submissions); and comments were submitted
as part of a petition of support (1 submission).
59 80 FR 64008, Oct. 22, 2015.
56 80
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FFRMS. In response to public
comments, the MitFLG clarified the
distinction between ‘‘actions’’ and
‘‘Federally funded projects.’’ On August
22, 2016, FEMA published an NPRM
entitled ‘‘Updates to Floodplain
Management and Protection of Wetlands
Regulations To Implement Executive
Order 13690 and the Federal Flood Risk
Management Standard’’ in the Federal
Register (81 FR 57402). The rulemaking
would have revised FEMA’s regulations
on ‘‘Floodplain Management and
Protection of Wetlands’’ to implement
Executive Order 13690. FEMA also
proposed a supplementary policy
entitled ‘‘FEMA Policy: Guidance for
Implementing the Federal Flood Risk
Management Standard (FFRMS)’’
(FEMA Policy 078–3), which would
have further clarified how FEMA would
apply the FFRMS. The notice of
availability and request for comments
for the supplementary policy also
published in the August 22, 2016,
Federal Register at 81 FR 56558. On
September 20, 2016, FEMA published a
notice of data availability regarding a
draft report, the 2016 Evaluation of the
Benefits of Freeboard for Public and
Nonresidential Buildings in Coastal
Areas, which had been added to the
docket for the proposed rule (81 FR
64403).
On August 15, 2017, the President
issued Executive Order 13807
(‘‘Establishing Discipline and
Accountability in the Environmental
Review and Permitting Process for
Infrastructure Projects’’) which revoked
Executive Order 13690. See 82 FR
40463, Aug. 24, 2017. Accordingly, on
March 6, 2018, in light of the revocation
of Executive Order 13690, FEMA
withdrew the August 22, 2016, NPRM
and supplementary policy (83 FR 9473).
On May 20, 2021, the President issued
Executive Order 14030 (‘‘ClimateRelated Financial Risk’’) 60 reinstating
Executive Order 13690, thereby
reestablishing the FFRMS. Executive
Order 14030 also states the Revised
Guidelines issued in 2015 were never
revoked and remain in effect. As such,
FEMA reviewed its prior NPRM and
proposed policy, and revised its
approach to implementation based on
lessons learned during and since the
2016 rulemaking process. Specifically,
FEMA first partially implemented the
FFRMS by policy with respect to
covered projects in existing floodplains
in its Public Assistance and Hazard
60 86 FR 27967, May 25, 2021. See also Executive
Order 13990 (‘‘Protecting Public Health and the
Environment and Restoring Science To Tackle the
Climate Crisis’’), 86 FR 7037, Jan. 25, 2021
(revoking Executive Order 13807).
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Mitigation Assistance programs.61
FEMA next proposed to fully implement
the FFRMS through the NPRM, which
proposed updates to FEMA regulations
and a supplemental FFRMS policy.62
E. Substantive Components of the
FFRMS
The FFRMS is a flexible framework to
increase resilience against flooding and
help preserve the natural values of
floodplains and wetlands.63
Incorporating the FFRMS will expand
the floodplain and require projects to
increase their resilience to flooding.
Applying the FFRMS will help ensure
that Federally funded projects will last
as long as intended. In addition, the
FFRMS and Revised Guidelines require
the evaluation of natural features and
nature-based approaches, where
possible, in the analysis of practicable
alternatives of the decision-making
process for all Federal actions. Naturebased approaches can also help
minimize an action’s impacts to the
floodplain and assist in restoring the
natural and beneficial functions of
floodplains.
Under the FFRMS, a Federal agency
may establish the floodplain for actions
subject to the FFRMS using any of the
following approaches:
• Approach 1: Climate-Informed
Science Approach (CISA): Utilizing the
best-available, actionable hydrologic
and hydraulic data and methods that
61 See FEMA Policy 104–22–003, ‘‘Partial
Implementation of the Federal Flood Risk
Management Standard for Public Assistance
(Interim),’’ June 3, 2022 found at https://
www.fema.gov/sites/default/files/documents/fema_
fp-104-22-0003-partial-implemetnation-ffrms-painterim.pdf (last accessed Jan. 24, 2024) and FEMA
Policy 206–21–003–0001, ‘‘Partial Implementation
of the Federal Flood Risk Management Standard for
Hazard Mitigation Assistance Program,’’ Dec. 7,
2022 found at https://www.fema.gov/sites/default/
files/documents/fema_policy-fp-206-21-003-0001implementation-ffrms-hma-program_122022.pdf
(last accessed Jan. 24, 2024).
62 88 FR 67870, Oct. 2, 2023.
63 Although the FFRMS describes various
approaches for determining the higher vertical flood
elevation and corresponding horizontal floodplain
for Federally funded projects, it is not meant to be
an ‘‘elevation’’ standard. The FFRMS is a resilience
standard. The vertical flood elevation and
corresponding horizontal floodplain determined
using the approaches in the FFRMS establish the
level to which a structure or facility must be
resilient to. This may include using structural or
non-structural methods to reduce or prevent
damage; elevating a structure; or, where
appropriate, designing it to adapt to, withstand, and
rapidly recover from a flood event. See ‘‘Guidelines
for Implementing Executive Order 11988,
Floodplain Management, and Executive Order
13690, ‘‘Establishing a Federal Flood Risk
Management Standard and a Process for Further
Soliciting and Considering Stakeholder Input’’ (Oct.
8, 2015), found at https://www.fema.gov/sites/
default/files/documents/fema_implementingguidelines-EO11988-13690_10082015.pdf (last
accessed Jan. 24, 2024).
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integrate current and future changes in
flooding based on climate science;
• Approach 2: Freeboard Value
Approach (FVA): Freeboard (1 percent
annual chance flood elevation + X,
where X is 3 feet for critical actions and
2 feet for other actions);
• Approach 3: 0.2-percent-annualchance Flood Approach (0.2PFA): 0.2
percent annual chance flood (also
known as the 500-year flood); or
• Approach 4: the elevation and flood
hazard area that result from using any
other method identified in an update to
the FFRMS.64
The four approaches are described in
further detail below.
FFRMS Approach 1: CISA
The Revised Guidelines state that the
CISA is the preferred approach, and that
Federal agencies should use this
approach when data to support such an
analysis are available and actionable.
The CISA uses existing, sound science
and engineering methods (e.g.,
hydrologic and hydraulic analysis and
methods used to establish current flood
elevations and floodplain maps),
supplemented with best available and
actionable climate science and
consideration of impacts from projected
land cover/land use changes, long-term
erosion, and other processes that may
alter flood hazards over the lifecycle of
the Federal investment.65 For areas
vulnerable to coastal flood hazards, the
CISA includes consideration of the
regional sea-level rise variability during
the lifecycle of the Federal action. This
includes use of global mean sea-levelrise scenarios adjusted to the local
relative sea-level conditions and would
be combined with surge, tide, and wave
data using state-of-the-art science in a
manner appropriate to policies,
practices, criticality, and consequences.
For areas vulnerable to riverine flood
hazards (i.e., flood hazards stemming
from a river source), the CISA would
account for changes in riverine
conditions due to current and future
changes in climate and other factors
such as land use, by applying state-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, as amended, but with an
emphasis on criticality as one of the
factors for agencies to consider when
conducting the analysis.
64 See Executive Order 13690 Section 2(i), 80 FR
6425, 6426 (Feb. 4, 2015).
65 See Revised Guidelines, pgs. 36–37.
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FFRMS Approach 2: FVA
The FFRMS and Revised Guidelines
define freeboard values as an additional
2 feet added to the 1 percent annual
chance flood elevation, or, for critical
actions, an additional 3 feet added to
the 1 percent annual chance flood
elevation. In other words, the floodplain
established by the FVA is the equivalent
of the 1 percent annual chance
floodplain, plus either 2 or 3 feet of
vertical elevation, as applicable based
on criticality, and a corresponding
increase in the horizontal extent of the
floodplain. The increased horizontal
extent will not be the same in every
case. When the same vertical increase is
applied in multiple actions subject to
the FFRMS in different areas, the
amount of the increase in the horizontal
extent of the respective floodplains will
depend upon the topography of the area
surrounding the proposed location of
the action.
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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. Under this approach, the same
floodplain and elevation is used for
critical and non-critical actions. The
FFRMS and Revised Guidelines note
that often the 0.2 percent annual chance
flood elevation data provided by FEMA
in coastal areas only considers stormsurge hazards; this data does not
include local wave action or storminduced erosion that are considered in
the computation of flood elevations. The
FFRMS and Revised Guidelines
encourage agencies to obtain or develop
the necessary data, including wave
heights, to ensure that any 0.2 percent
annual chance flood data applied will
achieve an appropriate level of flood
resilience or use the FVA approach
instead for the proposed investment.
FFRMS Approach 4: Update to FFRMS
The MitFLG, in consultation with the
Federal Interagency Floodplain
Management Task Force (FIFM–TF),
must reassess the FFRMS annually after
seeking stakeholder input and provide
recommendations to the WRC to update
the FFRMS, if warranted. The WRC
must issue an update to the FFRMS at
least every 5 years. The updates ensure
the floodplain determination process for
actions subject to the FFRMS reflects
current methodologies.
Further Guidance on Application of the
FFRMS Approaches to Establishing the
Floodplain
The FFRMS and Revised Guidelines
state that when an agency does not use
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the CISA in a coastal flood hazard area
and where the FEMA 0.2 percent annual
chance flood elevation does not include
wave height, or a wave height has not
been determined, the 0.2 percent annual
chance elevation should not be used,
and the FVA should be used instead.
The FFRMS and Revised Guidelines
note that where the 0.2 percent annual
chance flood elevation does not
consider wave action, the result will
likely either be lower than the current
base flood elevation or the base flood
elevation plus applicable freeboard.
Where wave action has been
incorporated into the 0.2 percent annual
chance elevation, the 0.2 percent annual
chance elevation can be used.
The Revised Guidelines state that for
riverine flood hazard areas, agencies
may select either the FVA or 0.2PFA (or
a combination of approaches, as
appropriate) when actionable science is
not available, and an agency opts not to
follow the CISA. The agency is not
required to use the higher of the
elevations but may opt to do so. The
elevation standards of the FFRMS are
not intended to supplant applicable
State, Tribal, territorial, or local
floodplain protection standards. If such
standards exceed the FFRMS, an agency
should apply those standards if the
agency determines the application of the
standards is reasonable considering the
goals of Executive Order 11988, as
amended.66
F. Summary of the 2023 Proposed Rule
and Proposed FFRMS Policy
The proposed rule set forth how
FEMA would implement Executive
Order 11988, as amended, the FFRMS,
and the Revised Guidelines as part of
FEMA’s floodplain management
regulations, while also updating
FEMA’s 8-step process. The proposed
rule included the following provisions,
66 See Revised Guidelines at 53. The Revised
Guidelines suggest agencies should apply a
reasonableness standard to higher SLTT floodplain
management standards. FEMA has historically
deferred to higher local codes and standards from
an SLTT government in 44 CFR 9.11(d)(6) and will
continue the practice through this rulemaking,
rather than applying a case-by-case reasonableness
analysis and believes this is appropriate because of
program-specific controls that ensure higher
standards are reasonable. Specifically, in the PA
program, if an SLTT government has adopted a
code or standard that exceeds minimum standards
set by FEMA, regulations at 44 CFR 206.226(d)
require the code to be in place and adopted predisaster which guards against an SLTT
government’s adoption of unreasonably high codes
and standards. With respect to mitigation projects,
they are all required to be cost-effective as a
minimum criteria of eligibility. See 42 U.S.C.
5170c(a); 42 U.S.C. 5133(b); 42 U.S.C.
4104c(c)(2)(A). This project-by-project costeffectiveness analysis should guard against any
SLTT standards that are unreasonably high.
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which remain unchanged in this final
rule except as indicated in section I.C of
this preamble.
Severability
The NPRM proposed to amend § 9.3
to remove the authorities section as
redundant and to replace it with a
severability section. FEMA did not
receive any comments on its proposal to
include a severability provision. The
proposed severability provision is
therefore incorporated in § 9.3 of this
final rule without change. FEMA
believes that its authority to require an
8-step decision making process and
incorporate the FFRMS into it is wellsupported in law and policy and should
be upheld in any legal challenge.
However, in the event that any portion
of the proposed rule is declared invalid,
FEMA intends that the various
provisions of 44 CFR part 9 be
severable. The provisions are not so
interconnected that the rule’s efficacy
depends on every one of them
remaining in place—implementation of
the different provisions is sufficiently
distinct that FEMA’s aim of updating
the 8-step process and incorporating the
FFRMS would still be furthered by
maintaining the other provisions. For
example, if a court were to find
unlawful FEMA’s inclusion of the
FFRMS approaches in § 9.7(c), FEMA
intends to retain the inclusion of
consideration of nature-based
approaches in the appropriate steps of
the 8-step decision making process and
all other amendments to the 44 CFR part
9 not affected by the court decision.
Similarly, if a court were to find
unlawful FEMA’s chosen approach in
the proposed policy, FEMA intends to
retain the regulatory changes
implementing the FFRMS. Those
provisions that are unaffected by a legal
ruling can be implemented by an agency
without requiring a new round of
rulemaking simply to promulgate
provisions that are not subject to a court
ruling.
Conforming Changes to Definitions
The NPRM proposed to amend § 9.4
to reflect the new definitions required
by the FFRMS and Revised Guidelines,
while also updating other definitions to
clarify terms and leverage common
usage that has evolved since the
regulation was issued. The most
significant definitional change proposed
by the FFRMS was the change to the
meaning of ‘‘floodplain.’’ To harmonize
this change in § 9.4, the NPRM proposed
to revise a few existing definitions and
removed other definitions. In addition,
the NPRM proposed to revise the
remaining sections of 44 CFR part 9 that
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refer generally to the floodplain or refer
specifically to the base (or 100-year)
floodplain or the 0.2 percent annual
chance (or 500-year) floodplain, for
clarity.
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Distinction Between ‘‘Actions Subject to
the FFRMS’’ and Other FEMA Actions
Step 1 in the 8-step process is to
determine whether the proposed action
is in the floodplain. Because Executive
Order 11988, as amended, and the
FFRMS revised the definition of the
‘‘floodplain’’ that agencies use for
‘‘Federally funded projects,’’ the NPRM
proposed to revise the first step to
require FEMA to determine whether the
proposed action falls within the
definition of an ‘‘action subject to the
FFRMS.’’ Under the proposed rule, if
FEMA determined that the action is a
Federally funded project, i.e., if FEMA
determined that the action uses FEMA
funds for new construction, substantial
improvement, or to address substantial
damage to a structure or facility, the
FFRMS floodplain would apply.
Alternatively, if FEMA determined that
the action did not fall under the
definition of an action subject to the
FFRMS, the existing floodplain analysis
would remain in place. For example, if
the action was considered non-critical,
the 1 percent annual chance floodplain
applied, and if the action was
considered critical, the 0.2 percent
annual chance floodplain applied.
Emphasis on Nature-Based Approaches
Executive Order 11988, as amended,
directs agencies to use, where possible,
natural systems, ecosystem processes,
and nature-based approaches in the
development of alternatives for Federal
actions in the floodplain. The NPRM
proposed to incorporate this
requirement in § 9.9, which addresses
the requirement to consider practicable
alternatives when determining whether
to locate an action in the floodplain.
This proposed requirement would apply
regardless of whether the proposed
action is a FEMA Federally funded
project. To further explain this proposed
requirement, the NPRM proposed to add
a definition of ‘‘nature-based
approaches,’’ meaning features designed
to mimic natural processes and provide
specific services such as reducing flood
risk and/or improving water quality.
The NPRM also proposed to add a
definition of ‘‘natural features,’’
meaning the characteristics of a
particular environment that are created
by physical, geological, biological, and
chemical processes and exist in
dynamic equilibrium.
Consistent with the Revised
Guidelines, FEMA proposed to update
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the factors integrated into its impact
analysis and minimization measures
(Step 4 and Step 5) to identify those
opportunities for beneficial floodplain
and wetland values, to include natural
values related factors that prioritize
water resource values, living resource
values, and agricultural, aquacultural,
and forestry resource values. Applying
natural features or nature-based
approaches as alternatives furthers the
goals in 44 CFR part 9 and allows for
FEMA to further encourage those
actions that increase the natural and
beneficial functions of the floodplain.
The NPRM proposed to update Step 1
of the 8-step process to describe the
floodplain determination for those
actions that are subject to the FFRMS,
and Step 3 to require the consideration
of natural features and nature-based
approaches in the identification and
evaluation of practicable alternatives.
The NPRM also proposed to incorporate
certain additional exclusions from all or
some of the 8-steps for certain categories
of actions being funded by FEMA.
Specifically, FEMA proposed to remove
private bridges and debris clearance and
removal under section 502 of the
Stafford Act from the 8-step process,
while also updating the monetary
thresholds for actions under sections
406 and 407 of the Stafford Act.
Proposed FFRMS Policy
The proposed FFRMS policy outlined
the FFRMS approach FEMA would use
for actions subject to the FFRMS.
FEMA’s proposed FFRMS policy would
be applicable to actions in the FFRMS
floodplain where FEMA funds were
used for new construction, substantial
improvement, or to address substantial
damage. Specifically, the proposed
policy would require FEMA to
determine the FFRMS floodplain
according to the Climate-Informed
Science Approach (CISA) for all
locations where the best-available,
actionable hydrologic and hydraulic
data methods that integrate current and
future changes in flooding based on
climate science exist. When the CISA
data was not available and not
actionable for a critical action, the
proposed FFRMS policy would require
FEMA to determine the FFRMS
floodplain as the area that would be
inundated by the higher of either the 0.2
percent annual chance flood or the 3
feet of freeboard above the base flood
elevation (BFE) for that location (the
Freeboard Value Approach or FVA).
When the CISA is not available and
actionable for a non-critical action, the
proposed FFRMS policy would require
FEMA to determine the FFRMS
floodplain as the area that would be
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56939
inundated by the lower of either the 0.2
percent annual chance flood or the 2
feet of freeboard above the BFE for that
location (the FVA). In coastal areas
where the CISA data is not available and
actionable, the proposed FFRMS policy
would require the FVA be used if the
available 0.2 percent annual chance
flood elevation does not account for
wave action.
FEMA noted in the policy and the
NPRM that it was coordinating across
the Federal government to develop
tools, such as the FFRMS Job Aid
published in the public docket
associated with this rulemaking,67 to
assist agencies and stakeholders in
determining the FFRMS floodplain and
would rely on those tools as the best
available information in making its
determinations. The FFRMS Job Aid
presents a general methodology to
identify the FFRMS floodplain for each
of the three approaches that relies on
information from available FEMA
FIRMs, U.S. Geological Survey (USGS)
ground elevations, and the 2022 Sea
Level Rise Technical Report sea level
rise estimates.68
FEMA’s proposed FFRMS policy also
required that nature-based solutions and
natural features be considered and
implemented where possible to all
actions that are subject to Step 3 of the
8-step decision-making process and not
just those actions subject to the FFRMS.
Nature-based solutions and natural
features must be considered as an
alternative action in Step 3. Where it is
not possible to use natural features and
nature-based solutions as an alternative
on their own, they would be considered
in conjunction with the proposed action
as a minimization measure in Step 5.
Updated FFRMS Resources
The FFRMS approaches include the
CISA, an ‘‘approach that uses the bestavailable, actionable hydrologic and
hydraulic data and methods that
integrate current and future changes in
flooding based on climate science.’’ The
Revised Guidelines and Appendix H
help to define the ‘‘best available and
actionable science,’’ stating that bestavailable generally refers to science,
data or information that is:
67 See NPRM, 88 FR 67870, 67900 and FEMA
Proposed Policy: Federal Flood Risk Management
Standard at pg. 5 (posted to the public docket at
https://www.regulations.gov/document/FEMA2023-0026-0005). See also https://www.fema.gov/
sites/default/files/documents/fema_ffrmsfloodplain-determination-job-aid.pdf (last accessed
Jan. 24, 2024) and posted to the public docket for
this rulemaking at https://www.regulations.gov/
document/FEMA-2023-0026-0004.
68 Id at Section 1.6.
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• transparent—clearly outlines
assumptions, applications, and
limitations;
• technically credible—transparent
subject matter or more formal external
peer review, as appropriate, of processes
and source data;
• usable—relevance and accessibility
of the information to its intended users;
and
• legitimate—perceived by
stakeholders to conform to recognized
principles, rules, or standards.
Legitimacy might be achieved by
existing government planning processes
with the opportunity for public
comment and engagement.69
Actionable science includes theories,
data, analyses, models, projections,
scenarios and tools that are:
• relevant to the decision under
consideration;
• reliable in terms of its scientific or
engineering basis and appropriate level
of peer review;
• understandable to those making the
decision;
• supportive of decisions across wide
spatial, temporal, and organizational
ranges, including those of time-sensitive
operational and capital investment
decision-making;
• co-produced by scientists,
practitioners, and decisionmakers, and
meet the needs of and are readily
accessible by stakeholders.70
Appendix H further defines a general
framework for the CISA by identifying
types of changes that should be
considered and discussing the
importance of considering operational
life; provides an approach for
incorporating uncertainty into the CISA;
and discusses a range of data sources.
The document does not prescribe or
direct agencies to use specific resources
or methods.
In 2023, the Science Subgroup
convened by the Flood Resilience
Interagency Working Group of the
National Climate Task Force published
the FFRMS CISA State of the Science
Report (‘‘FFRMS CISA State of the
Science Report’’).71 This report provides
a review and update of the bestavailable, actionable science that can
support application of the CISA,
reflecting science and technology
advancements made since 2015. Like
69 See Revised Guidelines, Appendix H: ClimateInformed Science Approach and Resources, pg.5
70 See Revised Guidelines, pg. 51 and Appendix
H: Climate-Informed Science Approach and
Resources, pg. 5.
71 Available at https://www.whitehouse.gov/wpcontent/uploads/2023/03/Federal-Flood-RiskManagement-Standard-Climate-Informed-ScienceApproach-CISA-State-of-the-Science-Report.
pdf?trk=public_post_comment-text (last accessed
Mar. 12, 2024).
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Appendix H from the Revised
Guidelines, the FFRMS CISA State of
the Science Report provides nonprescriptive, scientific, and engineering
guidance for use by Federal agencies,
their non-Federal partners, and other
entities in determining future flood
hazards under the FFRMS’ CISA option.
The FFRMS CISA State of the Science
Report refines the initial framework
from Appendix H to define two specific
workflows for applying the CISA,72
while acknowledging that technical
competencies and capabilities needed to
fully apply the CISA vary and may
exceed those available in most Federal
agencies and many non-Federal users.73
The Report states that workflow
implementation can be scaled to meet
resource level and project
requirements.74
The FFRMS CISA State of the Science
Report specifically identifies the latest
sea level rise projections from the
National Climate Assessment as
actionable.75 The FFRMS State of the
Science Report states each agency
should factor projected regional/local
sea level change into Federal investment
decisions located as far inland as the
extent of estimated tidal influence, now
and in the future, using the most
appropriate methods for the scale and
consequence of the decision.76 The
FFRMS CISA State of the Science
Report also suggests that along lowlying coastal shorelines on the Atlantic
and Gulf Coasts not subject to runup or
overtopping, the appropriate sea level
rise estimates can be used similar to
freeboard.77
72 FFRMS CISA State of the Science Report,
Coastal workflow starting on pg. 11 and Riverine
workflow starting on pg. 38.
73 Id. at pg. 5.
74 See id.
75 Id. at pgs. 21–22.
76 Id. at pg. 23.
77 The FFRMS CISA State of the Science Report
identifies the latest interagency Federal guidance
for regionally-based SLR projections as available
and actionable by recommending that all agencies
should use these data as part of a CISA approach.
At pg. 22, the Report states ‘‘Federal agencies
should apply this latest interagency Federal
guidance for regionally-based SLR projections.
Scenarios and time horizons should use a
consistent national approach based on risk
tolerance and criticality.’’ However, the Report also
warns against using the simplified approach with
SLR in areas subject to runup and overtopping on
pg. 28 ‘‘Notably, areas subject to runup and
overtopping can be very sensitive to changes in
water level (including due to SLR) and the
variability of the slope—so within a CISA
implementation, these areas should be treated with
appropriate analysis and not simple linear addition
of flooding components.’’ Based on these
guidelines, the FFRMS Job Aid establishes the use
of simplified CISA in specific areas, namely in
some coastal environments, specifically along lowlying coastal shorelines on the Atlantic and Gulf
Coasts. See FFRMS Job Aid, pg. 10.
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This is the basis of the interagency
implementation and supporting tools
such as the FFRMS Job Aid.78 The
FFRMS Job Aid is a resource to help
Federal agencies and their non-Federal
partners (including potential Federal
financial aid recipients) conduct a
screening to determine if a proposed
Federally funded action will be located
in an FFRMS floodplain, based on the
CISA, FVA, or 0.2PFA. While Appendix
H of the Revised Guidelines and the
FFRMS CISA State of the Science
Report provide more general approaches
that could be used to apply the CISA
with sufficient time, money and
expertise,79 FEMA does not believe the
data and science for these broader
approaches are sufficiently available
and actionable for FEMA to implement
at scale. As explained below, FEMA
prioritized the type and criticality of the
action involved, the availability and
actionability of the data, and equity
concerns, and determined that applying
the CISA through these broader, more
complex approaches is not appropriate
at this time given the agency’s role in
helping people recover from disasters in
an expedited manner. FEMA instead
decided to use consensus interagency
approaches that are readily accessible to
implement the CISA.
To help FEMA implement the
FFRMS, the agency will leverage
interagency tools. Specifically, FEMA
will follow the methodology laid out in
the FFRMS Job Aid to determine
whether a site for a proposed action
subject to the FFRMS is located within
an FFRMS floodplain and if so, the
FFRMS flood elevation for that site.
FEMA will follow the CISA, FVA, or
0.2PFA Job Aid methodologies
according to FEMA’s FFRMS policy.
Consistent with the FFRMS Job Aid,
FEMA finds that the CISA is currently
available and actionable for low-lying
coastal shorelines on the Atlantic and
Gulf Coasts.80 If a site poses other
complexities, such as steep bluffs or
shorelines armored by large seawalls or
similar flood-control structures, the
CISA is not available and actionable 81
and FEMA will instead use the FVA or
0.2PFA, per the agency’s policy. For the
CISA, FVA and 0.2PFA, FEMA will
follow the processes outlined in 44 CFR
9.7 and in FEMA Policy 104–008–2:
Guidance on the Use of Available Flood
78 Available at https://www.fema.gov/sites/
default/files/documents/fema_ffrms-floodplaindetermination-job-aid.pdf (last accessed Mar. 12,
2024).
79 FFRMS CISA State of the Science Report, pg.5,
Coastal workflow starting on pg. 11, and Riverine
workflow starting on pg. 38.
80 FFRMS Job Aid, pg. 10.
81 Id.
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Hazard Information.82 For example, if a
preliminary FIRM has more restrictive
flood hazard data than an effective
FIRM, FEMA will use the preliminary
FIRM to identify the appropriate flood
elevation.83
Consistent with the FFRMS Job Aid,
to determine whether a proposed site is
located within the FFRMS floodplain
under the CISA and FVA approaches,
FEMA will compare the ground
elevation at the site (using the U.S.
Geological Survey National Map) with
the FFRMS flood elevation.84 To
identify the FFRMS flood elevation
under the CISA and FVA, FEMA will
identify the BFE at the site or the BFE
at the nearest mapped floodplain if the
site is outside of the 1% annual chance
floodplain. Any relevant characteristics
of the action or site will be noted at this
stage (e.g., service life, criticality, and
flood characteristics).85 For the CISA,
FEMA will determine the FFRMS flood
elevation by using the NOAA Sea Level
Rise Viewer.86 FEMA will use the
service life of the action to select the
scenario year.87 For non-critical actions,
FEMA will use the intermediate
scenario, and for critical actions, FEMA
will use the intermediate high
scenario.88 FEMA will then add the
appropriate amount of sea level rise to
the BFE to reach the FFRMS CISA flood
elevation. If the site elevation is less
than the CISA flood elevation, then the
site is in the FFRMS CISA floodplain.
For the FVA, 2 feet will be added to the
BFE for non-critical actions or 3 feet for
critical actions to determine the FFRMS
FVA flood elevation.89 If the site
elevation is less than the FVA flood
elevation, then the site is in the FFRMS
FVA floodplain.90 For the 0.2PFA,
FEMA will compare the location of the
site with the horizontal extent of the 0.2
percent annual chance floodplain using
the FEMA Map Service Center or
National Flood Hazard Layer.91 If the
site is within the floodplain, then it is
within the FFRMS 0.2PFA floodplain.92
FEMA published these additional
resources in the public docket with this
rulemaking 93 to further assist the public
82 Available at https://www.fema.gov/sites/
default/files/2020-04/Available_Flood_Hazard_
Information_Policy_104-008-2.pdf (last accessed
Mar. 12, 2024).
83 See FFRMS Policy, pg. 5.
84 FFRMS Job Aid, pgs. 8–9.
85 FFRMS Job Aid, pgs. 8–9 and pgs.13–15.
86 Id., pgs. 20–23.
87 Id.
88 FFRMS Job Aid, pg. 21.
89 FFRMS Job Aid, pg. 8.
90 Id., pgs. 8–9
91 Id., pgs. 30–31.
92 Id.
93 See https://www.regulations.gov/document/
FEMA-2023-0026-0007 and https://
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in understanding the FFRMS and the
approaches utilized, including the
availability and actionability of the
CISA data and how FEMA would
implement the FFRMS through
application of the FFRMS Job Aid
methodology. FEMA will continue to
collaborate across the Federal
government to develop tools to facilitate
the implementation of CISA and the
FFRMS. The IWG recently released for
comment a beta version of the Federal
Flood Standard Support Tool (FFSST),
a novel, interactive, map-based tool that
incorporates new data to help users
identify if a Federally funded project is
in the FFRMS floodplain.94
G. Summary of FEMA’s Final Rule and
Updated Policy
This final rule implements Executive
Order 11988, as amended, the FFRMS,
and the Revised Guidelines, while also
updating FEMA’s 8-step process.
Consistent with the changes proposed in
the NPRM, FEMA is incorporating a
severability clause into part 9; updating
definitions to implement the FFRMS
and reflect current policy and practice;
providing the applicable effective date
for the changes made in the final rule
and further clarifying the rule’s scope;
updating how FEMA determines
whether an action is in a floodplain,
consistent with the FFRMS approaches
when the action is subject to the
FFRMS; and adding an emphasis on
nature-based approaches in the 8-step
process consistent with Executive Order
11988, as amended.
In this final rule, FEMA incorporates
edits to reflect commenter feedback.
Specifically, in § 9.7(c)(3), FEMA is
adding agencies from Federal and
Indian Tribal governments as potential
sources of information in making the
floodplain determination. These
changes better ensure that FEMA will
effectively consider relevant and
appropriate data in making the
floodplain determination under part 9.
FEMA is also making clarifying edits in
§ 9.5(a)(3) to clarify that copies of the
legacy regulations will be available on
the agency’s website and to § 9.7(c)(3) to
clarify that FEMA may consider
information from the entities listed.
FEMA is also making minor technical
edits in § 9.7(c)(1)(i)(C) and
§ 9.11(d)(3)(ii).
FFRMS Policy
FEMA’s FFRMS policy is also being
finalized with the publication of this
rule and will be effective with the rule’s
www.regulations.gov/document/FEMA-2023-00260004.
94 89 FR 25674 (Apr. 11, 2024).
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implementation. The FFRMS policy
provides guidance on how FEMA will
implement the FFRMS across FEMA’s
programs and further incorporate
nature-based solutions into the 8-step
process. FEMA is making minor
clarifying edits to the FFRMS policy
consistent with commenters’
suggestions by further clarifying the use
of the 0.2PFA in coastal areas and
making other technical edits to the
document for readability. FEMA is also
clarifying in the FFRMS policy that the
agency will leverage the FFRMS Job Aid
when implementing the FFRMS.
III. Discussion of Public Comments and
FEMA’s Responses
A. Summary of Public Comments
The NPRM public comment period
closed on December 1, 2023, and FEMA
received 47 germane comments.95
Commenters included non-profit
organizations; individuals; local
governments; State governments and
State government organizations; and forprofit entities. The majority of
comments were supportive of FEMA’s
rule and policy approach to
implementing the FFRMS and other
updates to part 9. Commenters focused
on the regulatory impact analysis (RIA)
accompanying the rule; the CISA and
the data FEMA would use to determine
each of the FFRMS approaches; FEMA’s
implementation of the FFRMS; and the
8-step process detailed in part 9. FEMA
describes the specific revisions in the
final rule and addresses commenters’
specific concerns below.
B. Comments in Support of the Rule
The majority of commenters were
generally supportive of the rule and
accompanying FFRMS policy.96
Commenters noted appreciation of
FEMA’s rulemaking efforts to enhance
the resilience and sustainability of
communities and ecosystems that are
vulnerable to flooding. These
commenters stated the FFRMS was a
critical policy tool to reduce risks and
promote sound floodplain management
and wetlands protection practices, as
well as fiscal responsibility.
Commenters were supportive of the
agency’s use of the FFRMS approaches
in the rulemaking and accompanying
FFRMS policy document. A commenter
noted the incorporation of the CISA,
FVA, and 0.2PFA reflected FEMA’s
commitment to using diverse and
95 One commenter provided a duplicate comment
posted to both the rulemaking and FFRMS policy
comments.
96 22 commenters expressed direct support for the
rule while 19 other commenters expressed only
specific recommendations to improve the rule.
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adaptive strategies based on the bestavailable scientific knowledge. Another
commenter supported the floodplain
definition revisions, stating that an
expanded floodplain definition would
ensure that more projects were built
with resilience in mind when compared
to current projects. A commenter stated
FEMA’s preferred CISA approach would
result in Federally funded projects that
were more resilient to current and
future flooding and ensured a wiser use
of taxpayer dollars. The commenter
stated stronger standards were feasible
to implement, as many jurisdictions
already have existing stronger building
and land-use standards. Commenters
also indicated support for FEMA’s
emphasis on using natural systems,
ecosystem processes, and nature-based
approaches.
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Timing
Comment: Some commenters
supporting the rule requested FEMA
quickly finalize and implement the final
rule. While requesting FEMA work
quickly to finalize and implement the
rule, one commenter noted that the
partial implementation policies in place
did not fully implement FFRMS as they
did not extend the horizontal
floodplain. This commenter requested
FEMA also integrate FFRMS into the
minimum floodplain management
standards for the NFIP. The commenter
also stated FEMA should ensure FFRMS
was sufficiently staffed and should
develop a comprehensive plan to track
enforcement and any concerns such as
environmental justice to ensure effective
implementation of the rule.
FEMA Response: FEMA agrees with
the commenters on the importance of
finalizing and implementing the rule
and FFRMS policy. FEMA is issuing
this final rule with an effective date of
September 9, 2024. As explained in
§ 9.5(a)(3), the FFRMS applies only to
new actions for which assistance is
made available pursuant to declarations
under the Stafford Act that are
commenced on or after the effective date
of the final rule, and new actions for
which assistance is made available
pursuant to notices of funding
opportunity that publish on or after the
effective date of the final rule.97
97 Note that FEMA first partially implemented the
FFRMS by policy with respect to covered projects
in existing floodplains in its Public Assistance and
Hazard Mitigation Assistance programs. See FEMA
Policy 104–22–003, ‘‘Partial Implementation of the
Federal Flood Risk Management Standard for
Public Assistance (Interim),’’ June 3, 2022 found at
https://www.fema.gov/sites/default/files/
documents/fema_fp-104-22-0003-partialimplemetnation-ffrms-pa-interim.pdf (last accessed
Jan. 24, 2024) and FEMA Policy 206–21–003–0001,
‘‘Partial Implementation of the Federal Flood Risk
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FEMA declines to accommodate the
commenter’s request to integrate the
FFRMS into the minimum floodplain
management standards for the NFIP
because it is beyond the scope of this
rulemaking. The NFIP is a program
through which property owners in
participating communities can purchase
Federal flood insurance as a protection
against flood losses.98 As a condition of
eligibility, a community must adopt and
enforce floodplain management
regulations that meet or exceed the NFIP
minimum floodplain management
criteria developed by the
Administrator.99 Further information
regarding FEMA’s minimum floodplain
management standards for the NFIP can
be found at 44 CFR part 59 et seq.
Because this rule only applies to
‘‘actions subject to the FFRMS,’’ 100 this
rule does not change any FEMA
standards applicable to community or
individual participation in any aspect of
the NFIP. In general, changes to 44 CFR
part 59 et seq would require a
rulemaking to revise the appropriate
sections of the CFR.
As an illustrative example, if an NFIPparticipating community owns a
structure in a floodplain that has been
substantially damaged and the
community decides to repair it using
community funds, funding from a flood
insurance payment, or other funding
that is not FEMA grant funding, the
community’s floodplain management
regulations, not the FFRMS, would
apply to the repair project. However, if
that same structure was substantially
damaged by a disaster event, and the
community applied for assistance under
a FEMA grant program like the Public
Assistance program, the FFRMS would
apply to that repair project.
Management Standard for Hazard Mitigation
Assistance Program,’’ Dec. 7, 2022 found at https://
www.fema.gov/sites/default/files/documents/fema_
policy-fp-206-21-003-0001-implementation-ffrmshma-program_122022.pdf (last accessed Jan. 24,
2024). Some current FEMA actions may be subject
to these partial implementation policies; however,
those actions would not be subject to this final rule
or policy.
98 42 U.S.C. 4011(a).
99 42 U.S.C. 4011(a) and (b); 42 U.S.C. 4102; 44
CFR 59.2(b), 59.22(a)(3), 60.1(d).
100 See ‘‘Guidelines for Implementing Executive
Order 11998, Floodplain Management, and
Executive Order 13690, Establishing a Federal
Flood Risk Management Standard and a Process for
Further Soliciting and Considering Stakeholder
Input,’’ 80 FR 64008 (Oct. 22, 2015) (providing
notice of the availability of the Revised Guidelines
in the docket for the rulemaking at https://
www.regulations.gov/document/FEMA-2015-00060358 (main content) and https://
www.regulations.gov/document/FEMA-2015-00060372 (appendices)) also available at https://
www.fema.gov/sites/default/files/documents/fema_
implementing-guidelines-EO11988-13690_
10082015.pdf (last accessed Mar. 11, 2024).
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FEMA agrees with the commenter that
it is important to adequately staff for
FFRMS implementation. FEMA is
accordingly ensuring that sufficient staff
at headquarters and regional offices are
appropriately trained to provide
technical assistance. FEMA currently
leverages the 8-step process detailed in
44 CFR part 9 as the mechanism to
implement Executive Order 11988. Step
8 of the process found at 44 CFR 9.6(b)
requires FEMA to review the
implementation and postimplementation phases of the proposed
action to ensure that the requirements
stated in § 9.11 are fully implemented.
Under this provision, oversight
responsibility is integrated into existing
processes associated with FEMA’s grant
management requirements. FEMA is not
making changes to these requirements
in the final rule and will continue to use
the current process to ensure
compliance with the FFRMS and
Executive Order 11988, as amended. 2
CFR 200.339 also allows FEMA to take
action to remedy a recipient’s
noncompliance with federal
requirements, including those required
by 44 CFR part 9, such as imposing new
conditions on the award or deobligating
funding for the award if a recipient does
not adhere to the requirements set forth
during the part 9 review process.
C. Comments in General Opposition to
the Rule
Four commenters expressed
opposition to the rule overall. Those
commenters raised concerns about the
complexity of the FFRMS approaches,
uncertainty about the CISA standard,
and the application of FFRMS to
specific types of FEMA actions. The
commenters stated concerns with the
potential increased costs associated
with implementing FFRMS and with
FEMA’s economic impact analysis
accompanying the rule. The
commenters also stated concerns with
implementing the FFRMS given
conflicting Federal, State, local, and
other requirements. Commenters stated
the FFRMS was a ‘‘one-size-fits-all’’
approach that lacked the flexibility to
address regional and local needs.
Commenters stated the use of the CISA
introduced uncertainty into the
regulations contrary to the fundamental
principles outlined in Executive Orders
12866 and 13563. Commenters also
stated FEMA’s analysis of the costs and
benefits associated with the rulemaking
did not adequately quantify the costs
and benefits of several components of
the risk reduction strategies in the rule.
Commenters raised questions regarding
FEMA’s statutory authority to
implement the rule. One commenter
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stated Congress should define the
floodplain. This commenter raised
similar concerns regarding the use of the
CISA and lack of data sources that map
the FFRMS floodplain. FEMA responds
to some of the general comments in
opposition to the rule in the comment
summaries and responses immediately
below and responds in more detail to
the remainder of the comments in the
following sections of the preamble.
Comment: One commenter requested
FEMA extend the comment deadline
associated with the rule for an
additional 60 days. The commenter
requested an extension of the comment
period given the complexity of the rule
and policy and to implement extensive
public outreach.
FEMA Response: FEMA received 48
comments to the public docket
associated with this rulemaking and no
other requests to extend the comment
period were received. The 60-day
comment period provided is consistent
with 44 CFR 1.3(b) and Executive
Orders 12866 and 13563. This
timeframe provided a reasonable
opportunity for public comment and is
particularly appropriate given FEMA’s
prior engagement on this topic. FEMA
completed extensive outreach in 2015 as
part of the development and publication
of the Revised Guidelines, and also
sought public input in connection with
the agency’s prior NPRM in 2016.101
Additional outreach will be completed
as part of the rule’s implementation as
FEMA will distribute additional
information to SLTT partners and the
public explaining again what the
101 Established by the 2013 Climate Action Plan,
the Climate Task Force met with stakeholders from
State, local, Tribal, and territorial governments;
private businesses; trade associations; academic
organizations; civil society; and other stakeholders
to develop and provide recommendations in
November 2014. President’s State, Local, and Tribal
Leaders Task Force on Climate Preparedness and
Resilience, Recommendations to the President,
(2014), available at https://obamawhitehouse.
archives.gov/sites/default/files/docs/task_force_
report_0.pdf at 7 (last accessed Jan. 24, 2024).
FEMA, acting on behalf of the MitFLG and
consistent with Executive Order 13690, published
a draft of the Revised Guidelines for notice and
comment on February 5, 2015 at 80 FR 6530. During
the public comment period, over 25 meetings were
held across the country with State, local, and Tribal
officials and interested stakeholders to discuss the
Revised Guidelines. There were also 9 public
listening sessions across the country that were
attended by over 700 participants from State, local,
and Tribal governments, and other stakeholder
organizations to discuss the Revised Guidelines.
The final Revised Guidelines were published on
October 22, 2015 at 80 FR 64008. FEMA published
a notice of proposed rulemaking to implement
FFRMS initially in 2016 at 81 FR 57402 (Aug. 22,
2016) along with a notice of availability and request
for comment on a FFRMS policy at 81 FR 56558
(Aug. 22, 2016) and a notice of availability
regarding a draft report at 81 FR 64403 (Sept. 20,
2016).
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FFRMS is and how the agency will
further implement the Executive Orders.
FEMA’s FFRMS policy will also be
reassessed on a four-year cycle to ensure
the approach continues to meet the
goals of Executive Order 11988, as
amended. During the four-year review
process, FEMA’s FFRMS policy will be
reviewed, revised, extended, and/or
rescinded as appropriate.
FEMA does not believe additional
engagement is needed to finalize this
rule. All but a few of commenters
expressed support for the rule and
FEMA’s FFRMS policy and many
requested swift implementation,
consistent with the need to protect
federal dollars and communities from
increasing flood risk.
Comment: One commenter stated the
rulemaking was premature in the
absence of a clearly defined process for
implementing the CISA and urged
FEMA to withdraw the rule from
consideration. The commenter
expressed concern that FEMA will take
a haphazard approach—completing
each analysis of the extent and elevation
of the CISA floodplain on a case-by-case
basis and doing so using data that may
not be complete or is not be widely
known or available to the public. The
commenter stated that in the end,
neither the process nor the outcome will
be predictable or replicable.
FEMA Response: FEMA disagrees.
This rulemaking is not premature, and
FEMA provided information in and
accompanying the NPRM explaining
how the CISA and the FFRMS will be
implemented. Each analysis will be
completed on a case-by-case basis
consistent with the current 8-step
process, which has been in place for
over four decades, to determine the
floodplain, but the data used to make
the analysis is publicly available and
replicable using the FFRMS CISA State
of the Science Report, the FFRMS Job
Aid, and FEMA’s FFRMS policy. As
explained above, the FFRMS CISA State
of the Science Report identifies the
latest sea level rise projections from the
National Climate Assessment as
available and actionable data and the
appropriate sea level rise estimates can
be used to approximate future 1 percent
annual chance flood levels. These
estimates can simply be added to the
current 1 percent annual chance flood
elevation to approximate the future 1
percent annual chance flood level, in
low-lying coastal shorelines on the
Atlantic and Gulf Coasts not subject to
runup or overtopping. The FFRMS Job
Aid 102 provides the methodology FEMA
will use to determine the floodplain and
elevation under the CISA where data is
actionable and available (namely in lowlying coastal shorelines on the Atlantic
and Gulf Coasts consistent with the
FFRMS CISA State of the Science
Report). FEMA’s FFRMS policy further
explains that the CISA is used where
actionable and available and provides
alternatives where such data is not
actionable and/or available. The CISA
analysis can be completed using these
publicly available materials for areas
with actionable and available data.
FEMA anticipates actionable and
available data will increase over time
and the interagency tools provided will
be updated to reflect the new data.
Comments: Two commenters
requested FEMA complete additional
analyses before finalizing the rule. Both
commenters referenced other floodrelated regulatory and policy actions,
including the Technical Mapping
Advisory Council (TMAC)’s proposal to
increase the regulatory floodplain and
increase the NFIP floodplain
management standards for land
management and use; Risk Rating 2.0 for
flood insurance premiums; and
USACE’s proposed levee safety updates
as well as risk informed decision
making.
One commenter requested the rule be
deferred until FEMA completed a
cumulative impacts assessment and
considered associated actions to
mitigate the impacts of the actions
above on communities participating in
the NFIP, mapping and accreditation,
low to moderate income families, and
disadvantaged communities. The
commenter further requested FEMA
withdraw the rule until a regulatory
analysis applying sound cost-benefit
analysis principles and a
comprehensive socio-economic impact
analyses to address the full and
intended scope of FFRMS were
completed. The commenter stated the
regulatory impact analysis should
address cumulative impacts and the
need for mitigation of impacts to
community property values, tax bases,
the distribution of real income, as well
as the impacts on affordable housing
and low to moderate income families
and disadvantaged communities.
The other commenter stated that
different flood regulations and policies
may overlap with or duplicate each
other and potentially lead to
redundancy, confusion, and additional
costs. The commenter requested FEMA
conduct a more thorough quantitative
cost-benefit analysis, considering the
102 Available at https://www.fema.gov/sites/
default/files/documents/fema_ffrms-floodplain-
determination-job-aid.pdf (last accessed Mar. 12,
2024).
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cumulative effects of recent floodplain
governing rules to make well informed
decisions regarding appropriate risk
reduction strategies and ensure a
thorough understanding of the overall
impact of the rule’s implementation.
The commenter requested FEMA
conduct a comprehensive assessment of
cumulative impacts to ensure a more
informed and coordinated approach and
requested that FEMA provide additional
documentation on how FFRMS would
impact other Federal agencies’
programs, such as USACE’s civil works
projects and whether FEMA’s FFRMS
policy would supersede other Federal
agencies’ rules and regulations. The
commenter stated FEMA relied on a
subjective assessment of the rule’s costs
and benefits. The commenter asked
FEMA to closely coordinate with other
agencies that typically co-regulate
projects, including USACE with water
resources projects.
The commenter also stated that the
FFRMS could lead to further
deterioration of key infrastructure,
where meeting the new, higher
standards is not technically or
financially feasible, resulting in
communities leaving the infrastructure
to deteriorate in place and not serve the
public need. The commenter stated that
these types of costs should be
considered in the regulatory analyses.
FEMA Response: FEMA disagrees this
rule should be deferred. While FEMA
understands the commenters’ interest in
the policy activities mentioned, the
agency does not believe those actions
are relevant to this rulemaking or
require additional analysis to finalize
this rule. The commenters reference a
recommendation made by the TMAC in
a recent annual report 103 that FEMA
expand the NFIP regulatory floodplain
as defined in 44 CFR 59.1 to which the
NFIP’s minimum floodplain
management criteria set forth in 44 CFR
60.3 applies, and the commenters
suggest that FEMA must delay this
rulemaking until it has analyzed the
effects of that recommendation. That is
not necessary because FEMA has not
implemented the TMAC
recommendation and therefore it has no
current effect on communities. The
TMAC is a Federal advisory committee
established to review and make
recommendations to FEMA on matters
related to the national flood mapping
program authorized under the BiggertWaters Flood Insurance Reform Act of
2012.104 The national flood mapping
program requires FEMA to review,
update, and maintain NFIP rate
maps.105 It is outside the scope of this
rule.
The commenters also refer to the
NFIP’s pricing approach 106 for NFIP
policyholders as a new ‘‘flood
regulation’’ that requires analysis prior
to finalizing this rulemaking. However,
this rulemaking does not impact the
NFIP’s site-specific actions, such as how
FEMA rates the premium for a flood
insurance policy. Further, the
population of NFIP policyholders is
much larger than the number of FEMA
grant recipients who will be impacted
by this rule.
One commenter states FEMA needs to
account for how the rule will impact
mapping and accreditation under the
NFIP; however, the rule does not
appreciably impact those areas of the
NFIP. This rule and the accompanying
policy implement the FFRMS for
actions where FEMA funds are used for
new construction, substantial
improvement or repairs to address
substantial damage, and requires that
nature-based solutions and natural
features be considered and implemented
where possible to all actions that are
subject to Step 3 of the 8-step decisionmaking process. Nature-based solutions
and natural features must be considered
as an alternative action in Step 3. Where
it is not possible to use natural features
and nature-based solutions as an
alternative on their own, they would be
considered in conjunction with the
proposed action as a minimization
measure in Step 5. Neither FEMA’s
flood mapping program nor its
accreditation of levees under the NFIP
are actions subject to the FFRMS and, to
the extent that any programmatic or
policy change to either of those areas are
required to undergo the 8-step process
under 44 CFR part 9, it is unlikely that
a consideration of nature-based
solutions will result in changes with
demonstrable impacts. FEMA cannot
address the other actions referenced,
such as the USACE’s civil works
projects and levee safety updates, as
these involve other Federal agencies,
and questions regarding those actions
are best addressed by those agencies
directly.
FEMA believes that the commenter’s
concerns about this rule’s economic
impacts is inconsistent with this rule’s
relatively limited applicability. FEMA
104 42
103 TMAC
2023 Interim Report, available at
https://www.fema.gov/sites/default/files/
documents/fema_rm-tmac-2023-interim-report30OCT2023.pdf (last accessed Mar. 28, 2024).
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U.S.C. 4101a.
U.S.C. 4101b.
106 Also known as Risk Rating 2.0, Equity in
Action. See https://www.fema.gov/flood-insurance/
risk-rating (last accessed Mar. 18, 2024).
105 42
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defines an ‘‘action subject to the
FFRMS’’ as ‘‘any action where FEMA
funds are used for new construction,
substantial improvement, or to address
substantial damage to a structure or
facility,’’ consistent with Executive
Order 11988, as amended, and the
Revised Guidelines. The FFRMS applies
to grants for projects funding the new
construction, substantial improvement,
or repair of substantial damage under
FEMA programs such as the IA, PA, and
HMA programs, and grants processed by
FEMA’s Grants Programs Directorate
(GPD) (involving grants for
preparedness activities). This rule does
not regulate privately funded activity in
the floodplain. As such, the
implementation of the FFRMS will have
negligible impacts on community
property values, tax bases, and the
distribution of real income.
Additionally, FEMA expects the
impacts on affordable housing for low to
moderate income households and
disadvantaged communities to be
minimal since most actions subject to
FFRMS requirements are nonresidential. FEMA only funds
residential construction in the IA and
HMA programs; FEMA funds 153
residential IA projects and 268 HMA
residential projects per year on average.
The majority of the costs associated
with FFRMS requirements will be
covered by FEMA funding.
Comment: A commenter stated the
FFRMS policy and rule were one-sided,
as they limited how people could use
and live in flood-prone areas without a
clear goal to support economic growth
or sensible development within
reasonable limits. The commenter stated
Congress likely would not endorse a
flood risk strategy that did not consider
using flood-prone areas optimally for
the country’s benefit. The commenter
stated the rule’s benefits were unclear
given the emphasis on constraints and
a lack of consideration for economic
development as part of resilience. The
commenter recommended that FEMA
adjust the policy to include efficient and
smart use of flood-prone areas while
acknowledging the limitations on
development.
FEMA Response: The revisions to part
9 are consistent with FEMA’s longstanding requirement as part of
implementation of Executive Order
11988, as amended, to only perform or
fund actions within or affecting
floodplains and wetlands if those
actions are the only practicable
alternative. FEMA’s regulations provide
for consideration of the need for
economic development and community
resilience, while also bolstering the
resilience of communities and Federal
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assets against the impacts of flooding.
For instance, through the 8-step process,
FEMA considers alternative locations,
alternative actions, natural features,
nature-based approaches, and the no
action alternative under the
practicability analysis. The definition of
‘‘practicable’’ makes clear that
practicability depends on the situation
and includes consideration of all
pertinent factors, such as natural
environment, social concerns, economic
aspects, legal constraints, and agency
authorities. In addition, if there is no
practicable alternative, FEMA will
perform or fund the action in the
floodplain or wetland and will
minimize any adverse impacts when
doing so. Under § 9.9 as well, in
determining the practicability of the
alternatives, FEMA considers economic
aspects.
D. FEMA’s Authority for Part 9 and
Revisions
Two commenters wrote comments
concurring with FEMA’s statutory and
other authority for the rulemaking.
Comments: Both commenters stated
the rule was a valid use of FEMA’s
regulatory authority, citing to the NFIA,
as amended by the Flood Disaster
Protection Act (42 U.S.C. 4001 et seq.),
the Stafford Act (42 U.S.C. 5121 et seq.),
and the NEPA (42 U.S.C. 4321 et seq.).
One commenter noted the Congressional
intent in the Stafford Act for the Federal
Government to develop land use and
construction regulations to help State
and local governments mitigate risk and
reduce losses and FEMA’s broad
discretion to define ‘‘safe land use and
construction practices’’ as a condition of
Stafford Act funding for both public and
private structures.107 The commenter
stated section 101 of NEPA required
FEMA to use all practicable means to
ensure Federal plans, programs, and
resources ‘‘(1) fulfill the responsibilities
of each generation as trustee of the
environment for succeeding generations;
(2) assure for all Americans safe,
healthful, productive, and esthetically
and culturally pleasing surroundings;
[and] (3) attain the widest range of
beneficial uses of the environment
without degradation, risk to health or
safety, or other undesirable and
unintended consequences’’ among other
priorities.108 The commenter stated the
FFRMS reflects a tradition of executive
action to enforce reasonable floodplain
management and wetland protection.
Another commenter noted the NFIA and
Flood Disaster Protection Act require
FEMA to establish land use criteria for
floodplain management 109 and that
NEPA requires Federal agencies to
evaluate the environmental and related
social and economic effects of their
proposed actions, which includes the
evaluation of the impacts of proposed
actions in the floodplains.110 Further,
the commenter stated the Stafford Act
directed FEMA to encourage ‘‘hazard
mitigation measures to reduce losses
from disasters, including development
of land use and construction
regulations.’’ 111 The commenter stated
FEMA’s regulations were consistent
with these legislative directives.
FEMA Response: FEMA agrees with
the commenter that the agency has
statutory authority to implement
FFRMS. Please refer to section II.B for
a description of FEMA’s statutory
authority to implement grant programs
and to require its grant recipients to
carry out repairs or construction in
accordance with specific standards.
Three commenters raised concerns
regarding FEMA’s legal authority to
amend part 9 and implement FFRMS.
Comment: One commenter stated
Congress should establish the definition
of floodplains. The commenter
acknowledged defining the geographic
scope of a floodplain was not an easy
task, but stated the implications on
landowners and others made it a job
best left for Congress. The commenter
stated that Congress drafted and debated
language over the last twenty plus years
on the issue and stated that Congress
has had the opportunity to revisit and
refine Federal floodplain policies as part
of NFIP regular reauthorization process.
The commenter stated it was bad public
policy to delegate defining the limits of
Federal authority to the agencies, citing
to challenges other agencies have had
defining ‘‘waters of the United States’’
and reiterating the need for
Congressional action.
FEMA Response: This comment
appears to confuse the definition of
floodplain under the NFIP with the
definition of floodplain that is being
altered with this rulemaking, and, as
such, makes incorrect statements and
assumptions about the role Congress has
played or should play. This rulemaking
is not altering the definition of
floodplain under the NFIP. The NFIP is
a program through which property
owners in participating communities
can purchase Federal flood insurance as
a protection against flood losses.112 As
a condition of eligibility, a community
must adopt and enforce floodplain
109 42
U.S.C. 4102, 42 U.S.C. 4104c.
U.S.C. 4332(2)(C).
111 42 U.S.C. 5121(b)(5).
112 42 U.S.C. 4011(a).
110 42
107 42
108 42
U.S.C. 5165a.
U.S.C. 4331(b).
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management regulations that meet or
exceed the NFIP minimum floodplain
management criteria developed by the
Administrator.113 The floodplain and
other definitions governing the NFIP
can be found at 44 CFR 59.1. This
rulemaking is updating the definition of
floodplain in 44 CFR part 9 as applied
to actions subject to the FFRMS, defined
as actions where FEMA funds are used
for new construction, substantial
improvement, or repairs to address
substantial damage to structures and
facilities.114 As set forth, in section II.B,
Congress has authorized FEMA to
implement grant programs and to
require its grant recipients to carry out
repairs or construction in accordance
with specific standards.
Comment: Two commenters requested
FEMA cite the specific and clear
Congressional authority for each
objective and mandate of FFRMS. Both
commenters noted the President may
have the authority to impose mandates
on Federal projects as cost-saving
measures, but regulation of private and
non-Federal activities within the
floodplain was limited to those
jurisdictions where local communities
have imposed upon themselves the
burden of floodplain regulation as a
condition of participation in the NFIP.
The commenters stated that applying
the FFRMS to private and non-Federal
government entities under other
regulatory programs was outside
FEMA’s statutory authority.
FEMA Response: Please refer to
section II.B for a description of FEMA’s
statutory authority to implement grant
programs and to require its grant
recipients to carry out repairs or
construction in accordance with specific
standards. Contrary to the commenter’s
assertions, this rule applies the FFRMS
to FEMA funded projects for new
construction, substantial improvement,
and repairs to address substantial
damage. It does not regulate privately
funded activity in the floodplain, it does
not alter the definition of floodplain
under the NFIP, and it does not apply
113 42 U.S.C. 4011(a) and (b); 42 U.S.C. 4102; 44
CFR 59.2(b), 59.22(a)(3), 60.1(d).
114 See ‘‘Guidelines for Implementing Executive
Order 11998, Floodplain Management, and
Executive Order 13690, Establishing a Federal
Flood Risk Management Standard and a Process for
Further Soliciting and Considering Stakeholder
Input,’’ 80 FR 64008 (Oct. 22, 2015) (providing
notice of the availability of the Revised Guidelines
in the docket for the rulemaking at https://
www.regulations.gov/document/FEMA-2015-00060358 (main content) and https://
www.regulations.gov/document/FEMA-2015-00060372 (appendices)) also available at https://
www.fema.gov/sites/default/files/documents/fema_
implementing-guidelines-EO11988-13690_
10082015.pdf (last accessed Mar. 11, 2024).
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the FFRMS to any programs other than
FEMA’s grant programs.
Comment: One of the commenters
stated that FEMA was acting without
clear statutory authority as
implementing the FFRMS fell within
the scope of a major question because of
the standard’s aggregate economic
impacts over time. Two commenters
recommended FEMA remove any
application of FFRMS to private and
non-Federal activities covered by
permitting, loan, or grant-in-aid
programs administered by Federal
agencies except where clear statutory
authority has been granted and also
sever any and all objectives related to
regulating floodplain activities to
protect wetlands. The commenters
stated Federal authority over wetlands
was limited by the Clean Water Act and
recent Supreme Court rulings, including
Sackett v. EPA.115
FEMA Response: FEMA disagrees the
aggregate economic impacts over time
associated with this rulemaking are a
matter of such ‘‘deep economic and
political significance’’ as to constitute a
‘‘major question,’’ as described by the
Supreme Court in West Virginia v.
EPA.116 While FEMA expects that this
rule would carry important benefits and
would ultimately save significant
taxpayer dollars, this rule is not akin to
the rule in West Virginia, where the
agency’s ‘‘own modeling concluded that
the rule would entail billions of dollars
in compliance costs (to be paid in the
form of higher energy prices), require
the retirement of dozens of coal-fired
plants, and eliminate tens of thousands
of jobs across various sectors.’’ 117 This
rulemaking requires FEMA grant
recipients to build a subset of the
construction projects that FEMA funds
to a higher standard in an expanded
floodplain. There is an increase in the
costs associated with this more resilient
building standard, but that increase is
paid primarily by FEMA and is
ultimately a fraction of what grant
recipients might already spend using
Federal funds to accomplish such
construction.
Even if the major questions doctrine
did apply, there is clear statutory
authority and longstanding precedent
for the rule. FEMA has authority to
require application of the FFRMS as a
condition of funding in its grant
programs based on the grant programs’
authorizing statutes. Congress granted
FEMA the authority to provide Federal
assistance through multiple grant
programs under the Robert T. Stafford
115 Sackett
v. EPA, 598 U.S. 651 (2023).
S. Ct. 2587 (2022).
117 Id. at 2604.
116 142
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Disaster Relief and Emergency
Assistance Act (Stafford Act),118 the
NFIA,119 the Homeland Security Act of
2002,120 the Federal Fire Prevention and
Control Act of 1974,121 the Earthquake
Hazards Reduction Act of 1977,122 and
various other appropriations acts. Under
each of these authorities, FEMA may set
grant eligibility criteria consistent with
the respective purposes of such
programs and FEMA’s mission,
including to protect Federal investments
from the risks of further damage.123
Under the Stafford Act and the NFIA,
which authorize the programs that fund
the majority of the actions subject to the
FFRMS, FEMA has general rulemaking
authority.124 Further, FEMA has explicit
authority under the Stafford Act to set
the minimum standards for safe land
use and construction standards required
in the repair or construction of private
and public facilities.125 Further, in the
time since Executive Order 11988 was
first issued in 1977 and FEMA issued its
implementing regulations at 44 CFR part
9 in 1979 and 1980, Congress has
amended FEMA’s governing authorities
multiple times without overriding part
U.S.C. 5121 et seq.
U.S.C. 4001 et seq.
120 6 U.S.C. 101 et seq; see also 6 U.S.C.
314(a)(12), which specifically charges the
Administrator with supervising various grant
programs authorized under the HSA. Such grant
programs have long been governed by floodplain
management regulations at 44 CFR part 9, see, e.g.,
44 FR 76510 (Dec. 27, 1979), 45 FR 59520 (Sept.
9, 1980). See also, e.g., 2 CFR 200.300(a) (directing
Federal awarding agencies to manage and
administer Federal awards in a manner so as to
ensure that Federal funding is expended and
associated programs are implemented in full
accordance with the U.S. Constitution, Federal Law,
and public policy requirements including, but not
limited to, those protecting public welfare and the
environment; and requiring the Federal awarding
agency to communicate to the non-Federal entity all
relevant public policy requirements, and
incorporate them either directly or by reference in
the terms and conditions of the Federal award.).
121 15 U.S.C. 2229 and 2229a.
122 42 U.S.C. 7701 et seq.
123 See, e.g., 6 U.S.C. 609 (granting FEMA
approval authority over grant funds for construction
awards under its Homeland Security Grant
Program, State Homeland Security Grant Program,
Urban Area Security Initiative, Operation
Stonegarden, Tribal Homeland Security Grant
Program, and Nonprofit Security Grant Program); 6
U.S.C. 1182(d)(1) (granting DHS the authority to
determine the grant requirements for the Intercity
Bus Security Grant Program); 6 U.S.C. 1163(c)(1)
(granting FEMA the authority to determine the grant
requirements for the Intercity Passenger Rail grant
program); 46 U.S.C. 70101 (granting DHS approval
authority over grant funds for construction awards
under the Port Security Grant Program); 6 U.S.C.
1135(c)(1) (granting DHS the authority to determine
the grant requirements for the Transit Security
Grant Program); 33 U.S.C. 467f–2(c)(2)(A) (granting
FEMA the authority to set the minimum eligibility
requirements for the Rehabilitation of High Hazard
Dam Program).
124 See 42 U.S.C. 5164; 42 U.S.C. 4128(a) and (b).
125 42 U.S.C. 5165a(a)(1)–(2).
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119 42
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9.126 Consistent with the approach that
FEMA has taken for decades, this rule
revises part 9 pursuant to FEMA’s
statutory authorities and in line with
Executive Order 11988, as amended.
Finally, the comments related to
wetlands and the Supreme Court’s
decision in Sackett v. EPA are not
germane to this rulemaking. FEMA’s
proposed changes to the definition of
wetlands within the regulation was
limited to reorganizing the placement of
examples within the definition and
removing an outdated resource. FEMA’s
proposed changes do not change how
the agency makes wetland
determinations.
E. Definitions
FEMA received over 40 specific
comments on the proposed rule’s
definitions in § 9.4. Commenters were
generally supportive of the proposed
revisions but sought clarification or
offered suggestions to enhance the
definitions provided in the proposed
rule. FEMA has carefully reviewed the
commenters’ suggestions and is not
revising the NPRM definitions in this
final rule but is providing multiple
clarifications below.
1. General Comments on Definitions
Comments: Commenters requested
additional clarity regarding definitions
and additional engagement on
definitions generally. A commenter
requested FEMA provide clear
definitions and describe abbreviations
before they are used in the rulemaking,
policy, and any additional guidance or
resources provided. The commenter
provided an example of the term ‘‘AC
floodplain’’ used in a graphic without
definition. Another commenter
requested FEMA engage stakeholders
from a range of relevant backgrounds in
the review process to gather varied
perspectives and ensure that definitions
are clear and universally understood.
FEMA Response: FEMA will
distribute additional resources to the
public and SLTT partners after the
rule’s publication to ensure that
stakeholders understand what the
FFRMS is and how the agency will
implement the revised part 9. These
resources will include additional
examples to help applicants better
understand the FFRMS as they apply for
FEMA programs. FEMA appreciates the
126 See, e.g., Disaster Mitigation Act of 2000,
Public Law 106–390, 114 Stat. 1552 (Oct. 30, 2000);
Post-Katrina Emergency Management Reform Act of
2006, Public Law 109–295, 120 Stat. 1452 (Oct. 4,
2006); Sandy Recovery Improvement Act of 2013;
Public Law 113–2, 127 Stat. 47 (Jan. 29, 2013);
Disaster Recovery Reform Act of 2018, Public Law
115–254, 132 Stat. 3448 (Oct. 5, 2018).
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commenter’s concern and has updated
Figure 1 in the FFRMS policy to clarify
‘‘AC floodplain’’ means ‘‘annual chance
floodplain.’’
FEMA engaged stakeholders as part of
the development and publication of the
Revised Guidelines, which contain most
of the definitions FEMA uses in this
rulemaking. Stakeholders also provided
specific feedback on the definitions in
§ 9.4 as part of this rulemaking effort
and FEMA addresses their concerns in
this final rule.
2. 0.2PFA
Comment: A commenter expressed
support for the definition of the 0.2
percent annual chance flood elevation
(0.2PFA), agreeing with the use of the
terminology similar to annual
exceedance probability for defining
flow, floodplains, and water surface
elevation in the floodplain.
FEMA Response: FEMA appreciates
the commenter’s consideration of the
definition.
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3. Agency
Comment: One commenter requested
clarification on how the term ‘‘agency’’
was defined under part 9.
FEMA Response: FEMA defines
‘‘agency’’ in § 9.4 as ‘‘the Federal
Emergency Management Agency
(FEMA).’’ FEMA is not changing the
definition of ‘‘agency’’ in this final rule.
4. Critical Action
Comments: Five commenters asked
FEMA to further clarify the definition of
‘‘critical action,’’ stating the definition
was too vague and left too much room
for interpretation. Commenters asked for
a list of examples of critical actions to
support the definition in § 9.4 and/or
sufficient information to distinguish
between critical and non-critical
actions. One commenter asked FEMA to
provide examples related to the
transportation sector and recommended
roadways, bridges, and culverts not be
considered critical actions. One
commenter requested a process for local
representatives to provide input on
what constitutes critical action/critical
facilities.
FEMA Response: FEMA’s definition of
‘‘critical action’’ is consistent with
Executive Order 11988, as amended,
through the 1978 Guidelines and further
clarified in the Revised Guidelines.
FEMA notes the term ‘‘critical action’’ is
not new but was developed and
implemented initially with Executive
Order 11988 in 1977. The Revised
Guidelines provide further details on
what constitutes a critical action. FEMA
will leverage the information in the
Revised Guidelines when providing
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additional guidance to stakeholders.
The determination of whether an action
to create or extend the useful life of a
structure or a facility is a critical action
is generally made on a case-by-case
basis consistent with the information
found in the Revised Guidelines. Local
representatives have input on whether a
particular action is a ‘‘critical action’’ as
part of the agency’s 8-step process.
5. Federal Action
Comment: Two commenters sought
clarification on the term ‘‘Federal
action.’’ Commenters sought
clarification on what is a ‘‘Federal
action’’ subject to the FFRMS and stated
confusion and inconsistency could
result among different Federal agencies
and programs implementing the
FFRMS. One commenter asked for
additional clarification on whether
specific FEMA programs were subject to
the FFRMS. That commenter also
sought clarification on how the FFRMS
would interact with other Federal laws
and regulations that govern floodplain
management, such as the NFIP, NEPA,
and the Endangered Species Act (ESA).
FEMA Response: In this rulemaking,
FEMA revises § 9.4 to define ‘‘action
subject to the FFRMS’’ as ‘‘any action
where FEMA funds are used for new
construction, substantial improvement,
or to address substantial damage to a
structure or facility.’’ As explained
above, the requirements of this rule
apply to grants for projects funding the
new construction, substantial
improvement, or repair of substantial
damage under FEMA programs such as
IA, PA, and HMA programs, and grants
processed by FEMA’s GPD.
Part 9 only applies to FEMA actions.
Other Federal agencies will implement
FFRMS through their own regulations
and/or policies. To ensure consistency,
all Federal agencies will utilize the
Revised Guidelines in their own FFRMS
implementation. Per 44 CFR 9.11(d)(6),
no action may be taken if it is
inconsistent with the NFIP or any more
restrictive Federal, State, or local
floodplain management standards.
FEMA funding actions are also
evaluated pursuant to the NEPA, ESA,
and other environmental and historic
preservation requirements. The Federal
action will not be approved unless it
meets all applicable environmental and
historic preservation requirements.
6. Floodplain
Comments: A commenter requested
FEMA coordinate with the agency’s
TMAC to ensure the new rule’s
definition of ‘‘floodplain’’ in § 9.4
accounts for potential changes in the
definition and mapping of floodplains
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recommended by the TMAC. Another
commenter asked how the floodplain
would be defined in the FFRMS and if
the floodway would be considered a
regulatory floodplain. The commenter
stated it was unclear how the expanded
horizontal FFRMS floodplain would
impact future State Department of
Transportations’ maintenance work in
coordination with the Federal Highway
Administration (FHWA).
FEMA Response: FEMA appreciates
the commenter’s concerns. The purpose
of TMAC is to provide analysis under
the NFIA. The requirements of
Executive Order 11988, as amended, are
distinct from TMAC recommendations
and thus FEMA disagrees with the
commenter that coordination with
TMAC is required to finalize this rule.
As explained above, the TMAC is a
Federal advisory committee established
to review and make recommendations to
FEMA on matters related to the national
flood mapping program authorized
under the Biggert-Waters Flood
Insurance Reform Act of 2012.127 The
national flood mapping program
requires FEMA to review, update, and
maintain NFIP rate maps.128 While the
framework FEMA uses in part 9 is
distinct from mapping
recommendations for flood prone areas
TMAC made in their recent annual
report, FEMA believes that the
flexibility outlined in 44 CFR 9.7 and
the practice of using the best available
information will allow the application
of part 9 to adjust to any change made
in the mapping process should FEMA
adopt any of the TMAC
recommendations.
As explained in the NPRM in 44 CFR
9.4, FEMA defines the ‘‘Federal Flood
Risk Management Standard Floodplain’’
as the floodplain established using one
of the approaches described in 44 CFR
9.7(c). The floodway and the regulatory
floodway are also defined in 44 CFR 9.4
and are within the floodplain for
purposes of part 9. The requirements of
this rule will apply to actions funding
the new construction, substantial
improvement, or repair of substantial
damage under FEMA programs such as
IA, PA, and HMA programs, and grants
processed by FEMA’s GPD. Roads that
are under the jurisdiction of another
Federal agency, such as those under the
FHWA, are subject to that agency’s
requirements as they generally are
ineligible for funding under FEMA’s
grant assistance programs.
127 42
128 42
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7. Nature-Based Approaches
While some commenters expressed
support for the definition of ‘‘naturebased approaches’’ in the rule, other
commenters requested specific
revisions.
Comment: One commenter stated the
definition of ‘‘nature-based approaches’’
failed to take into account a design
intent to protect or restore natural
processes; and did not include reference
to hybrid gray/green solutions that
might be required for restoring habitat,
attenuating floods, and keeping
communities safe. The commenter
suggested a definition closer to the
‘‘nature-based solutions’’ definition
published on FEMA’s website. The
commenter requested FEMA work with
other Federal agencies to agree on
common definitions for key
terminology. Further, the commenter
recommended that FEMA remove
language stating that nature-based
approaches ‘‘generally, but not always,
must be maintained in order to reliably
provide the intended level of service,’’
because maintenance requirements are
highly variable and are also generally
necessary to maintain grey
infrastructure. The commenter stated
that ‘‘nature-based solutions specifically
aim to work with nature (as opposed to
grey infrastructure solutions that often
are designed to control or work against
nature processes) and therefore can be
less susceptible to catastrophic failure
or repeated maintenance and can
require lower maintenance costs
overall.’’ This commenter also requested
FEMA include ‘‘green infrastructure’’
when describing the definition. The
commenter recommended FEMA
include a broader range of ecosystembased activities in the description of
natural and nature-based actions,
especially those more appropriate for
larger or more rural floodplains. The
commenter provided specific scenarios
of nature-based approaches.
FEMA Response: FEMA appreciates
the commenter’s concerns and believes
the definition as written is appropriate.
The definition is consistent with the
glossary definition in the Revised
Guidelines. The Revised Guidelines
provide broad guidance in
implementing Executive Order 11988,
as amended and ‘‘offer a common point
of reference so that each agency can use
or amend their procedures as
appropriate.’’ 129 Consistency with the
Revised Guidelines definition helps
ensure more consistent implementation
of nature-based approaches across the
Federal government and meets the
129 Revised
Guidelines at pg. 13.
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commenter’s request for FEMA to utilize
common terminology with other Federal
agencies. Changes such as those
proposed by the commenter would
increase the potential for inconsistency
and stakeholder confusion working on
projects involving multiple Federal
agencies.
FEMA notes that the Revised
Guidelines state that nature-based
approaches can restore natural
processes, and the agency does not
believe the definition excludes either
protecting or restoring natural
processes. For purposes of part 9,
nature-based solutions are specific to
floodplains and wetlands, and the
commenter’s references to nature-based
solutions on the agency’s website
reflects the full range of natural hazards
FEMA programs may mitigate.
Regarding maintenance, FEMA believes
the language is appropriate in the
definition as written. The use of
‘‘maintenance’’ is to differentiate
between nature-based approaches and
natural features. Nature-based
approaches are designed to mimic
natural processes, but they are not
wholly naturally occurring. As such,
they may require some form of
maintenance to ensure they are
performing as intended. In comparison,
natural features are those characteristics
of the environment that are naturally
occurring and exist in a dynamic
equilibrium, so should require little to
no maintenance in serving their
purpose. FEMA understands the
commenter’s concern that ‘‘green
infrastructure’’ is more expansive than
stated in the NPRM and plans to
provide additional resources that will
incorporate examples to address some of
the specific scenarios raised by the
commenter. FEMA notes the definition
of ‘‘nature-based approaches’’ states that
nature-based approaches are sometimes
referred to as ‘‘green infrastructure.’’
Comments: Two other commenters
requested edits to the definition of
‘‘nature-based approaches’’ to
incorporate restoration and conservation
of natural systems. The commenters
stated that such edits would ensure all
relevant nature-based approaches are
adequately considered. Another
commenter recommended expanding
the definition of ‘‘nature-based
approaches’’ by removing the reference
to ‘‘green infrastructure’’ at the
beginning of the definition and
incorporating the statement ‘‘Naturebased approaches include green
infrastructure practices, as well as
conservation approaches such as the
restoration of wetland and floodplain
hydrology and other river processes’’
into the definition while also revising
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the language regarding maintenance to
state such approaches can be selfsustaining or need ongoing
maintenance.
FEMA Response: While FEMA
appreciates the commenters’ concerns to
include restoration or conservation of
naturally occurring systems and
processes and concerns related to green
infrastructure, FEMA’s definitions are
consistent with the glossary definition
in the Revised Guidelines and the
changes proposed by the commenters
could result in inconsistencies
including inconsistent implementation
across other Federal agencies. As
explained above, the Revised Guidelines
help ensure key terminology is
consistent across Federal agencies
implementing FFRMS. The Revised
Guidelines state that nature-based
approaches can restore natural
processes, and FEMA does not believe
the definition excludes restoring or
conserving natural systems. FEMA will
provide additional resources with
additional examples of nature-based
approaches including more information
on green infrastructure to address the
commenters’ concerns. FEMA will also
coordinate with other Federal agencies
regarding the use of nature-based
solutions as part of the FFRMS
implementation.
FEMA appreciates the commenter’s
suggestion to specifically reference ‘‘the
restoration of wetland and floodplain
hydrology and other river processes’’ in
the definition of ‘‘nature-based
approaches,’’ but disagrees that such an
edit is needed to the definition to
address the commenter’s concerns.
FEMA’s longstanding requirements in
44 CFR 9.11 outline the agency’s
requirements to restore and preserve the
natural and beneficial values served by
floodplains and wetlands. This
requirement to restore and preserve the
values served by floodplains and
wetlands, see, e.g., 44 CFR 9.11(b)(3) &
(e), applies to all actions located within
a floodplain or wetland or that affect a
floodplain or wetland, including actions
that use nature-based approaches.
As explained above, the use of
‘‘maintenance’’ is to differentiate
between nature-based approaches and
natural features and FEMA does not
believe the changes suggested by the
commenter are appropriate. Naturebased approaches are designed to mimic
natural processes, but they are not
wholly naturally occurring. As such,
they may require some form of
maintenance to ensure they are
performing as intended. In comparison,
natural features are those characteristics
of the environment that are naturally
occurring and exist in a dynamic
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equilibrium, so should require little to
no maintenance in serving their
purpose. FEMA understands the
commenter’s concern that ‘‘green
infrastructure’’ is more expansive than
stated in the NPRM and plans to
provide additional resources that will
incorporate examples to address some of
the specific scenarios raised by the
commenter. FEMA notes the definition
of ‘‘nature-based approaches’’ states that
nature-based approaches are sometimes
referred to as ‘‘green infrastructure’’ and
the proposed changes merely restate
language already incorporated into the
definition.
Comment: One commenter restated
concerns from a 2016 NPRM comment
that the current definition listed ‘‘green
roofs’’ or ‘‘downspout disconnection’’ as
examples of nature-based approaches,
and recommended FEMA provide more
applicable examples of nature-based
approaches, including ‘‘property
acquisitions and relocations;’’ ‘‘dam
removal;’’ ‘‘levee notching, setbacks, or
removal;’’ and ‘‘stream crossing
upgrades.’’ The commenter also
recommended FEMA expand the
definition of nature-based approaches to
encompass the restoration and
conservation of natural features,
providing added emphasis on the use of
actions to bolster natural flood risk and
water quality management services.
FEMA Response: FEMA’s definition of
‘‘nature-based approaches’’ in the final
rule, like the definition in the NPRM,
does not contain ‘‘green roofs’’ or
‘‘downspout disconnection.’’ FEMA’s
definition is consistent with the Revised
Guidelines glossary definition and, as
explained above, the changes proposed
by the commenter could result in
inconsistencies including inconsistent
implementation across other Federal
agencies. While FEMA appreciates the
commenters’ concerns to include
restoration or conservation of naturally
occurring systems and processes and
concerns related to green infrastructure,
the Revised Guidelines help ensure key
terminology is consistent across Federal
agencies implementing FFRMS.
Although the Revised Guidelines state
that nature-based approaches can
restore natural processes, FEMA does
not believe the definition excludes
either protecting or restoring natural
processes.
FEMA referred to green roofs and
downspout disconnection in the
preamble to the NPRM as potential
examples of green infrastructure, but not
as part of the proposed regulatory
definition. See 88 FR at 67890. As part
of implementing this final rule, FEMA
will provide additional resources with
additional examples to address the
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commenter’s concerns as explained
above.
Comment: One commenter asked how
FEMA defines natural systems and
ecosystem processes.
FEMA Response: FEMA defined
‘‘nature-based approaches’’ and ‘‘natural
features’’ in proposed § 9.4. FEMA
believes those definitions are sufficient
and the terms the commenter used are
generally accepted terms found in
Executive Order 11988, as amended,
that do not require additional definition
in this final rule.
56949
wetlands’’ and ‘‘wetlands’’ and the
addition of definitions for ‘‘nature-based
approaches’’ and ‘‘natural features’’ are
helpful features of the rule. FEMA will
distribute additional resources to SLTT
partners and the public identifying what
the FFRMS is, and how the agency will
further implement the Executive Orders
and part 9.
9. New Construction
Comment: One commenter
recommended the definition of ‘‘new
construction’’ include ‘‘allowed new
8. Natural and Beneficial Values of
construction’’ associated with systems
Floodplains and Wetlands and Natural
that must be located in the floodplain
Features
for supplementing water supply. The
FEMA received three comments on
commenter requested the rule require
the definitions of ‘‘natural and
consideration of specific stormwater
beneficial values of floodplains and
runoff requirements for construction
wetlands’’ and ‘‘natural features.’’
that must be completed in the
Comment: One commenter requested
floodplain and that FEMA recognize
FEMA incorporate more explicit
managed aquifer recharge (MAR)-related
references to biodiversity, ecosystem
activities might be subject to other State
functioning, and natural values into the
and/or Federal regulation.
regulation and requested ‘‘habitat
FEMA Response: The definition of
connectivity’’ be added to the definition
‘‘new construction’’ in part 9 must be
of ‘‘natural and beneficial values of
broad in nature to support the various
floodplains and wetlands’’ as an
example under ‘‘Living Resource
types of projects and activities FEMA
Values.’’
may perform or fund. FEMA specifically
FEMA Response: FEMA respectfully
incorporated examples in the definition
declines the commenter’s request, as the of ‘‘new construction’’ to relate to
agency believes the concept habitat
typical FEMA actions, but those
connectivity is adequately addressed
examples are not exhaustive. Under the
under Living Resource Values through
8-step decision-making process, FEMA
the changes made in this final rule.
identifies and evaluates practicable
Specifically, the final rule describes
alternatives. If there is no practicable
Living Resource Values as ‘‘providing
alternative outside of the floodplain,
habitats and enhancing biodiversity for
such as for functionally dependent
fish, wildlife, and plant resources.’’ This
uses,130 the action may be carried out in
language adequately encompasses
the
floodplain. The types of actions
habitat connectivity, and no edits are
described
by the commenter (managed
required to the final rule.
aquifer recharge floodwater storage
Comment: A commenter requested
retention, spillways, injection wells and
FEMA include ‘‘functions’’ in addition
to values when referring to protecting or other built systems that must be located
in the floodplain for their intended
restoring floodplains and wetlands to
purpose of supplementing water
read ‘‘the beneficial functions and
supply), would be determined to be
values of floodplains and wetlands.’’
FEMA Response: FEMA’s definition of functionally dependent uses with likely
‘‘natural and beneficial values of
no alternative outside of the floodplain.
floodplains and wetlands’’ incorporates FEMA believes no changes are required
functions and FEMA does not believe
to the regulation language, as those
additional edits are required.
types of actions would be allowable
Comment: One commenter supported subject to the application of the FFRMS
the changes proposed to the definitions
and the minimization requirements
of ‘‘natural and beneficial values of
outlined in 44 CFR 9.11. FEMA notes
floodplains and wetlands,’’ and
some agency actions will also be subject
‘‘wetlands’’ and additional definitions
to other Federal, State, Tribal, territorial,
for ‘‘nature-based approaches’’ and
and/or local requirements and FEMA
‘‘natural features’’ and requested FEMA addresses this issue in the FFRMS
develop post-regulatory guidance on
policy.
functional floodplains and wetlands and
nature-based solutions.
130 Functionally dependent use means those
FEMA Response: FEMA agrees the
actions which cannot perform their intended
changes to the definitions of ‘‘natural
function unless they are located in or in close
and beneficial values of floodplains and proximity to water. See 44 CFR 9.4.
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10. Practicable
Comments: Two commenters were
supportive of the definition of
‘‘practicable.’’
FEMA Response: FEMA agrees with
the commenters that the updated
definition of ‘‘practicable’’ in § 9.4
ensures nature-based approaches are
considered as practicable alternatives
consistent with Executive Order 11988,
as amended.
Comment: One commenter stated the
definition of ‘‘practicable’’ was
extremely vague and might not provide
sufficient guidance to ensure
meaningful comparison of alternatives.
Recognizing the agency’s need for a
broad definition to account for
differences in situations, the commenter
noted the definition did not provide
much guidance to determine what is
truly ‘‘practicable,’’ as opposed to
merely expedient. The commenter
requested FEMA require consideration
of long-term environmental,
community, and economic benefits and
costs of an alternative, to ensure
practicability determinations were not
skewed towards grey infrastructure or
in-floodplain actions. The commenter
wrote those actions appeared cheaper or
more convenient in the short-term but
carried greater long-term adverse effects,
risks, and/or costs.
FEMA Response: FEMA did not make
significant changes to the definition of
‘‘practicable.’’ The changes made in the
NPRM and finalized in this rule add an
agency authorities factor to clarify the
agency’s statutory and regulatory
authorities may also limit FEMA’s
actions. These changes also updated the
factors for consistency with the Revised
Guidelines. FEMA does not believe
additional changes are required to the
definition of ‘‘practicable’’ as the factors
listed are not all inclusive. The
regulatory text in § 9.9 also provides
examples and FEMA will provide
additional examples in resources to
SLTTs and the public to further clarify
as appropriate.
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11. Restore
Comment: One comment requested
the agency provide examples of what
‘‘natural functions’’ of the floodplain
means and specifically include
‘‘wildlife habitat and connectivity,
carbon sequestration, and water quality
improvement.’’
FEMA Response: FEMA’s definition of
‘‘restore’’ in § 9.4 does not require the
revisions requested. FEMA’s definition
of the ‘‘natural and beneficial values of
floodplains and wetlands’’ provides
examples of what natural functions of
the floodplain mean and additional
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edits are not required to address the
commenter’s concerns. Specifically, the
definition provides some examples but
is not all inclusive. FEMA can provide
additional examples in resources to
SLTTs and the public to further clarify
as appropriate.
12. Structures and Facilities
Comment: One commenter
recommended linear transportation
structures not fall under the definition
of ‘‘structures.’’
FEMA Response: FEMA defines both
‘‘structures’’ and ‘‘facilities’’ in § 9.4 and
the agency believes these definitions are
sufficiently clear. In the FFRMS policy,
FEMA addresses both structures and
facilities and how the agency will apply
FFRMS to each. See section G of the
FFRMS policy for more guidance on
facilities. FEMA edited the FFRMS
Policy accompanying this final rule to
further clarify that section G.2 applies to
‘‘facilities.’’ Linear transportation
structures fall under the definition of
‘‘facilities’’ for purposes of this part.
13. Wetlands
While one commenter wrote in
support of the revised definition of
‘‘wetlands,’’ three other commenters
requested revision to the definition.
Comment: One commenter stated the
use of the United States Fish and
Wildlife Service (USFWS) ’s wetlands
definition was problematic, stating in
their experience, USFWS declined to
engage on projects unless the projects
involved species protected by the
Endangered Species Act (ESA) and their
habitat. The commenter noted water
projects and developments involve
regulation by the U.S. Army Corps of
Engineers (USACE) more often than
with USFWS, and recommended FEMA
revise the definition of ‘‘wetlands’’ to
use the USACE’s long-standing wetland
definition.
FEMA Response: FEMA appreciates
the commenter’s suggestion and
declines to change the definition as the
agency believes the reference to USFWS
is more appropriate than to USACE’s
definition. FEMA’s definition is
consistent with the definition of
‘‘wetlands’’ in Executive Order 11990
and the agency is implementing that
Executive Order with this regulation.
FEMA believes changes to this
definition may result in conflating the
implementation of Executive Order
11990 with the Clean Water Act. While
the commenter is correct that the
USACE definition focuses on flood
attenuation or mitigation, FEMA’s part 9
implementation goes beyond those
considerations for wetlands. FEMA also
notes the agency performs Section 7
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consultation with USFWS under ESA
for actions that affect protected species
or critical habitat.
Comment: One commenter
recommended FEMA retain the
reference to the specific publication
provided in the definition of
‘‘wetlands.’’ The commenter stated the
publication provided extensive
examples and further clarification of
what should be considered wetlands
and was still used in the definition by
the USFWS. The commenter requested
the definition be updated to the correct
year of publication in the final rule.
FEMA Response: FEMA’s definition is
consistent with the definition of
‘‘wetlands’’ in Executive Order 11990,
and the agency is implementing that
Executive Order with this regulation.
FEMA believes deleting the reference to
a specific publication in the regulations
will not result in a less specific
definition as the commenter states.
Eliminating references to specific
publications helps reduce the potential
for the regulations to be outdated if the
publication is updated or replaced. As
the commenter pointed out, the current
regulatory text does not reference the
correct year of the publication and the
final rule will eliminate confusion
around this point. FEMA still
anticipates remaining consistent with
the USFWS definition for purposes of
part 9.
Comment: One commenter
recommended the final rule specify
whether artificially induced and/or
isolated wetlands were included and
add clearer agency expectations for
subsections under the agency’s FFRMS
policy, particularly those involving
wetlands.
FEMA Response: FEMA has not
changed how the 8-step process applies
to wetlands and does not intend to as
part of FFRMS implementation in this
rulemaking. FEMA’s definition is
consistent with the definition of
‘‘wetlands’’ in Executive Order 11990
and the agency is implementing that
Executive Order with this regulation.
FEMA believes the commenter is
conflating the implementation of
Executive Order 11990 with the Clean
Water Act and FEMA’s part 9
implementation goes beyond those
considerations for wetlands.
14. Additional Definitions Requested
In addition to the new and revised
definitions provided in the NPRM,
commenters requested FEMA add
definitions to the final rule.
Comment: One commenter stated the
need for clearer definitions was
paramount to avoiding ambiguity and
ensuring a shared understanding of key
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terms. The commenter referenced the
Climate-Informed Science Approach
(CISA) as a term lacking a definition in
the rule as an example of the need for
more clarity.
FEMA Response: FEMA appreciates
the commenter’s concerns but changes
to the final rule are not required to
resolve those concerns. FEMA’s
explanation of the Climate-Informed
Science Approach is consistent with
Executive Order 11988, as amended,
and the Revised Guidelines. Rather than
providing specific definitions in
regulatory text, FEMA describes each
approach in § 9.7(c) and in the FFRMS
policy. FEMA believes these
explanations are sufficiently clear and,
because they are consistent with the
Executive Order and Revised
Guidelines, will not result in ambiguity.
Comment: One commenter
recommended adding a definition of
‘‘development’’ for consistency with the
NFIP at 44 CFR part 59. The commenter
also recommended adding a definition
of ‘‘non-critical actions’’ to help define
structures and facilities that clearly do
not fall under the critical action
standard and reduce
misunderstandings.
FEMA Response: FEMA defines
‘‘support of floodplain and wetland
development’’ in § 9.4 and a definition
of ‘‘development’’ is incorporated into
that definition. In the FFRMS policy,
FEMA clarifies what constitutes a noncritical action as any activity that does
not meet the definition of critical action.
FEMA does not believe a specific
definition in the regulatory text is
necessary given the definition of
‘‘critical action’’ already provided in
§ 9.4.
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F. FFRMS Applicability
Commenters requested clarification
on the applicability of FFRMS generally
as well as to specific types of actions.
1. Generally
Comments: Two commenters sought
clarification on the Federal actions that
are subject to FFRMS. Both commenters
stated that the term ‘‘action subject to
the FFRMS’’ could cause
misinterpretation or confusion among
different Federal agencies implementing
the FFRMS. Another commenter asked
whether the regulation and FFRMS
policy would affect only new
construction funded by FEMA. The
commenter recommended a clarification
to help States understand where
FEMA’s regulations implementing the
FFRMS apply and whether FFRMS
applied to State DOT projects funded
through FHWA. The commenter also
recommended FEMA clarify how the
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FFRMS applied to FEMA-funded, nonFEMA but still Federally-funded, and
State-funded activities.
FEMA Response: FEMA defines
‘‘action subject to the FFRMS’’ as ‘‘any
action where FEMA funds are used for
new construction, substantial
improvement, or to address substantial
damage to a structure or facility,’’
consistent with Executive Order 11988,
as amended, and the Revised
Guidelines. FEMA believes this
definition is sufficiently clear. As
explained in the preamble to the NPRM,
44 CFR part 9 applies to FEMA actions.
As explained above, the requirements of
this rule apply to grants funding the
new construction, substantial
improvement, or repair of substantial
damage under FEMA programs such as
IA, PA, and HMA programs, and grants
processed by FEMA’s GPD (involving
grants for preparedness activities). All
Federal agencies will utilize the Revised
Guidelines for their own FFRMS
implementation. Roads that are under
the jurisdiction of another Federal
agency, such as those under the FHWA,
are subject to that agency’s requirements
as they generally are ineligible for
funding under FEMA’s grant assistance
programs.
As explained in § 9.5(a)(3), FEMA will
apply FFRMS only to new actions for
which assistance is made available
pursuant to declarations under the
Stafford Act that are commenced on or
after the effective date of the final rule,
and new actions for which assistance is
made available pursuant to notices of
funding opportunity that publish on or
after the effective date of the final rule.
Ongoing projects will not be impacted
by this final rule.131
Comment: A commenter requested
FEMA clearly define how Federally
funded expansions, renovations,
rebuild, rehabilitations and similar
activities would be impacted by the
FFRMS. The commenter noted many
infrastructure projects are not static
131 Note that FEMA first partially implemented
the FFRMS by policy with respect to covered
projects in existing floodplains in its Public
Assistance and Hazard Mitigation Assistance
programs. See FEMA Policy 104–22–003, ‘‘Partial
Implementation of the Federal Flood Risk
Management Standard for Public Assistance
(Interim),’’ June 3, 2022 found at https://
www.fema.gov/sites/default/files/documents/fema_
fp-104-22-0003-partial-implemetnation-ffrms-painterim.pdf (last accessed Jan. 24, 2024) and FEMA
Policy 206–21–003–0001, ‘‘Partial Implementation
of the Federal Flood Risk Management Standard for
Hazard Mitigation Assistance Program,’’ Dec. 7,
2022 found at https://www.fema.gov/sites/default/
files/documents/fema_policy-fp-206-21-003-0001implementation-ffrms-hma-program_122022.pdf
(last accessed Jan. 24, 2024). Some current FEMA
actions may be subject to these partial
implementation policies; however, those actions
would not be subject to this final rule or policy.
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56951
structures, but rather periodically
require rehabilitation, renovation, and/
or expansion and thus would include a
combination of rehabilitation of existing
construction, modification of existing
infrastructure, and entirely new
infrastructure elements that would be
combined during a project to create the
‘‘new’’ final structure and/or system.
The commenter stated that FFRMS
seemed to apply only to new structures
that can be sited or elevated without
moving or damaging existing
construction and requested
confirmation of that understanding.
Another commenter commended
FEMA’s proposed policy provisions for
identifying actions that might be subject
to determinations of substantial damage
or substantial improvement.
FEMA Response: Part 9 does not
apply only to new structures, and FEMA
believes the rule and FFRMS policy are
sufficiently clear on this point. As stated
above, FEMA defines ‘‘action subject to
the FFRMS’’ as ‘‘any action where
FEMA funds are used for new
construction, substantial improvement,
or to address substantial damage to a
structure or facility,’’ consistent with
Executive Order 11988, as amended,
and the Revised Guidelines.
In § 9.4, FEMA defines ‘‘new
construction’’ in this final rule as ‘‘the
construction of a new structure or
facility or the replacement of a structure
or facility which has been totally
destroyed. New construction includes
permanent installation of temporary
housing units because even though such
housing may initially have been
planned to be temporary, when it is
permanently installed, it becomes a
permanent housing solution for
survivors. New construction in wetlands
includes draining, dredging,
channelizing, filling, diking,
impounding, and related activities.’’
Also in § 9.4, FEMA further defines
‘‘substantial improvement’’ as any
repair, reconstruction or other
improvement of a structure or facility,
which has been damaged in excess of,
or the cost of which equals or exceeds,
50 percent of the pre-disaster market
value of the structure or replacement
cost of the facility (including all ‘‘public
facilities’’ as defined in the Stafford Act)
(1) before the repair or improvement is
started, or (2) if the structure or facility
has been damaged and is proposed to be
restored. Substantial improvement
includes work to address substantial
damage to a structure or facility. As it
related to the commenter’s stated
concern, if a facility is an essential link
in a larger system, the percentage of
damage will be based on the cost of
repairing the damaged facility relative to
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the replacement cost of the portion of
the system which is operationally
dependent on the facility. The term
‘‘substantial improvement’’ does not
include any alteration of a structure or
facility listed on the National Register of
Historic Places or a State Inventory of
Historic Places. Where an action falls
under one of the definitions above, it
would be considered an action subject
to FFRMS.
The revisions to part 9 do not change
FEMA’s long-standing requirement as
part of implementing Executive Order
11988, as amended, to only perform or
fund actions within or affecting
floodplains if those actions are the only
practicable alternative. Through the 8step process, FEMA considers
alternative locations, alternative actions,
nature-based solutions, and the no
action alternative under the
practicability analysis. If there is no
practicable alternative, FEMA will
perform or fund the action and will
minimize any adverse impacts when
doing so.
2. FEMA Specific Programs
Commenters also commented on the
applicability of FFRMS to specific
FEMA programs.
Comments: Some commenters stated
support for FEMA’s policy regarding
FFRMS applicability to temporary and
permanent housing. One commenter
requested FEMA give careful
consideration to potentially unintended
consequences of greatly expanded
requirements for victims of a
catastrophic disaster in need of
emergency federal disaster assistance.
The commenter cited a study related to
the impacts of Hurricane Ian and
discussed how the flood extent in many
areas was approximated by the Special
Flood Hazard Area (SFHA) boundaries,
noting without constraints in
development in the SFHA, flood
damages for the area studied would
have skyrocketed. Another commenter
expressed concern that the proposed
rule could increase local costs and delay
affordable housing projects. The
commenter requested FEMA consider
ways to advance affordable housing
projects, such as through expansion of
its ‘‘Housing Mitigation Assistance’’
grants and requested the agency make
accommodations for such projects to
support a more expeditious regulatory
process.
FEMA Response: FEMA appreciates
the commenter’s interest in the agency’s
Individuals and Households Program.
FEMA’s revisions in § 9.13 reflect the
agency’s consideration of the need for
disaster survivors to quickly recover,
while also addressing the need for more
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resilient housing. FEMA notes this
rulemaking will not expand the SFHA
for NFIP purposes nor does it apply to
a local community’s permitting
processes under the NFIP’s floodplain
management regulations. Those
regulations are found at 44 CFR part 59
et seq. FEMA notes the agency does not
have ‘‘Housing Mitigation Assistance’’
grants, but where FEMA provides
funding for housing, the agency will
consider social concerns and economic
aspects as part of the practicability
analysis in the 8-step process.
Comments: Multiple commenters
referenced the NFIP and FFRMS
applicability. One commenter stated
that FEMA only applies the 8-step
process programmatically to the NFIP as
a whole. The commenter further noted
the FFRMS would only apply to new
construction or substantial
improvement to existing structures or
facilities that receive FEMA funding.
The commenter stated support for
exempting all privately funded activities
from the FFRMS as those activities were
beyond the scope of FEMA’s authority
and would create challenges in
determining the geographic scope of the
FFRMS defined floodplain and
increased construction costs that would
negatively impact housing affordability.
Another commenter wrote asking if
the FFRMS policy would impact where
new flood insurance policies could be
issued. The commenter recommended
FEMA consider coordinating with other
Federal agencies and expanding the
Coastal Barrier Resources Act (CBRA)
and/or identifying additional areas
where new flood insurance policies
could not be issued based on FFRMS
approaches.
A third commenter wrote the work
needed to restore floodplain
connectivity should have a streamlined
regulatory process and additional
financial and technical support to meet
regulatory burdens. The commenter
stated a fundamental tenet of the NFIP
was to discourage increases in base
flood elevation from ‘‘traditional
development,’’ whereas floodplain
restoration projects are intended to
increase the base flood elevation in
areas where it is safe and socially
acceptable to do so. The commenter
stated floodplain restoration work was
urgently needed in many flood-prone
areas, but the NFIP requirements
hindered federal investments in
floodplain restoration work. The
commenter stated that regulatory
reforms are needed to ensure Federal
restoration dollars could be leveraged to
help reduce flood risks and damages.
FEMA Response: FEMA agrees with
the commenter that privately funded
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activities are not subject to this rule.
This rulemaking is not regulating
privately funded action; instead, this
rulemaking applies to actions subject to
the FFRMS, i.e., Federally funded
projects for new construction,
substantial improvement, and repairs to
address substantial damage. For the
purposes of regulating private activities,
the NFIP’s floodplain management
standards will continue to generally
apply in NFIP participating
communities.132 The commenter is also
correct that FEMA applies part 9
programmatically to the NFIP.133
Notwithstanding the programmatic
application of part 9 to the NFIP, the
expanded floodplain established under
this rule has no impact on where new
flood insurance policies may be issued
(including community eligibility for the
NFIP participation and individual
premiums) because the expanded
floodplain only applies to actions
subject to the FFRMS.
In short, part 9 does not apply to the
issuance of flood insurance policies.
This rule and accompanying policy will
have no effect on where new flood
insurance policies may be issued. FEMA
notes that only Congress can expand
CBRA, and USFWS has primary
authority for the implementation of
CBRA. While FEMA appreciates the
commenter’s concerns regarding
floodplain restoration, regulatory
reforms to the NFIP suggested by the
commenter are beyond the scope of this
rulemaking.
3. Facilities
Four commenters had questions
regarding the applicability of the final
rule and FFRMS policy to facilities.
Comment: A commenter
recommended FEMA clarify special
considerations for infrastructure
projects by providing more information
and guidance on how to implement
FFRMS for ‘‘facilities.’’ The commenter
stated essential facilities like roadways,
bridges, and utilities might be
vulnerable to flood damage and required
even more attention, but the rule was
largely silent as to how FFRMS applied
to these projects.
The same commenter wrote of their
experience with agencies struggling to
adequately assess relevant flood risks
when evaluating vital facilities and
132 The NFIP’s floodplain management standards
are generally found at 44 CFR 60.3. There are
variances and exceptions from the standards
written into 60.3. Additionally, some communities
have higher standards above the NFIP’s floodplain
management minimum requirements.
133 A comprehensive list of FEMA programs to
which Part 9 does not apply appears at 44 CFR 9.5.
The exemption for actions under the NFIP is
located at 44 CFR 9.5(f).
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recommended incorporating language
into Steps 1 and 5 of the 8-step process,
clarifying appropriate considerations
and methods to apply the FFRMS to
facilities. The commenter requested
FEMA set forth factors to consider when
defining the FFRMS floodplain for
facilities (such as considering a larger
project area and vulnerability of nearby
assets that could be affected) to
encourage better, more informed
decisions. The commenter also
recommended FEMA revise § 9.11 to
clarify that although elevation is not
universally required for facilities,
mitigation measures for facilities subject
to the FFRMS must be designed to be
resilient to the FFRMS flood elevation.
Another commenter encouraged
FEMA to provide more information and
guidance in the final rule on
implementing the FFRMS for facilities.
The commenter stated that most
facilities would likely require different
implementation considerations and
standards than those defined in the rule
for structures. The commenter stated
that elevation may not be an appropriate
means to improve or achieve resilience
for facilities and requested that the final
rule and related guidance provide
variables to consider, which could help
define appropriate resilience measures
in addition to or in place of elevation.
FEMA Response: FEMA appreciates
the commenter’s references to
challenges with assessing relevant flood
risks for vital facilities and
infrastructure. As the commenter notes,
several factors must be considered when
implementing the FFRMS for facilities.
FEMA believes that the agency’s 8-step
process and implementing policy
account for the specific concerns raised
in the examples provided. The agency’s
policy reflects a preference for using the
CISA that considers sea level rise and
FEMA’s practicability analysis
incorporates social concerns and
economic aspects into the 8-step
process. FEMA’s revisions to part 9
reflect consideration of the type and
criticality of the action involved, the
availability and actionability of the data,
and equity concerns in the
implementation of Executive Order
11988, as amended. FEMA also has an
agency-wide initiative focused on
reducing barriers and increasing
opportunities so that all people,
including those from vulnerable and
underserved communities, can get help
when they need it.134Additionally,
FEMA reviews all proposed FEMAfunded actions for potential
134 See https://www.fema.gov/emergencymanagers/national-preparedness/equity (last
accessed Jan. 24, 2024).
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disproportionate and adverse human
health and environmental effects on
communities with environmental justice
concerns using a standardized
environmental justice compliance
review process.
For the reasons described below,
FEMA’s current proposed FFRMS
policy uses the FFRMS flood elevation
and corresponding floodplain to
establish the minimum level to which a
structure or facility must be resilient.
For facility projects that are subject to
the FFRMS, the FFRMS flood elevation
represents the magnitude of flooding
that must be considered in
incorporating flood resilient design
features into project designs. This
approach allows the FFRMS to be
integrated as one element of projectspecific comprehensive design methods
and leaves open the possibility of more
prescriptive design requirements as
infrastructure design methods improve,
better incorporating consideration of
continually changing hazard conditions.
Due to the vast diversity of facilities,
the highly project-specific nature of
facilities projects, and numerous
options for making them resilient,
infrastructure standards (in terms of
narrowly scoped specifications) to
reduce risk from climate change and
future conditions currently do not exist
on a national level. This lack of
established standards, and the long
timeline necessary to develop them,
requires consideration of less
prescriptive approaches. In the absence
of such standards, Federal agencies that
oversee construction of infrastructure
projects such as the FHWA and USACE
apply project-specific risk assessment
and adaptive management approaches,
which generally require data collection,
detailed studies, benefit-cost analyses,
and consideration of various
alternatives, adaptation, and mitigation
measures.135
135 See, e.g., Federal Highway Administration
Hydraulic Engineering Circular No. 17, 2nd Ed:
Highways in the River Environment—Floodplains,
Extreme Events, Risk, and Resilience 2016,
available at https://www.fhwa.dot.gov/engineering/
hydraulics/library_arc.cfm?pub_number=2&id=162
(last accessed Jan. 24, 2024), Federal Highway
Administration Hydraulic Engineering Circular No.
25, 2nd Ed: Highways in the Coastal Environment
October 2014, available at https://
www.fhwa.dot.gov/engineering/hydraulics/pubs/
nhi14006/nhi14006.pdf (last accessed March 28,
2024), US Army Corps of Engineers Engineering
and Construction Bulletin 2018–14: Guidance for
Incorporating Climate Change Impacts to Inland
Hydrology in Civil Works Studies, Designs, and
Projects, available at https://wbdg.org/ffc/dod/
engineering-and-construction-bulletins-ecb/usaceecb-2018-14 (last accessed Jan. 24, 2024), and US
Army Corps of Engineers Engineer Regulation No.
1100–2–8162: Incorporating Sea Level Change in
Civil Works Programs, June 2019, available at
https://www.publications.usace.army.mil/USACE-
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56953
FEMA already incorporates many of
these approaches into its grant
requirements. FEMA Recovery Interim
Policy 104–009–11 Version 2.0,
‘‘Consensus-Based Codes, Specifications
and Standards for Public Assistance’’
(December 20, 2019) requires
‘‘application of the latest nationwide
consensus-based codes, specifications
and standards that incorporate hazard
resistance for PA funded projects,’’
including buildings, electric power,
roads, bridges, potable water, and
wastewater.136 Appendix A of the
policy includes an extensive list of risk
assessment and adaptive management
methods which applicants are required
to use ‘‘as the minimum design criteria
for eligible projects.’’ Eligibility for
Hazard Mitigation Assistance funding
requires SLTT partners to have up-todate hazard mitigation plans, which
incorporate community-wide risk
assessment and adaptive management
approaches applicable to facilities or
linear infrastructure.
Further, FEMA does not believe
changes to the final rule are required as
the regulation applies the 8-step process
to any action, as defined in 44 CFR 9.4,
which includes facilities. In the 8-step
process, FEMA considers not just
whether proposed actions would be in
a floodplain or wetland, but also
whether the proposed action would
affect a floodplain or wetland. FEMA
has routinely applied Steps 1 and 5 to
facilities. FEMA also applies Step 4,
which identifies impacts of a proposed
action at and beyond the proposed
action location. FEMA will distribute
additional resources for the public and
SLTT partners to help identify what the
FFRMS is, and how the agency will
implement the Executive Orders. These
resources will help applicants better
understand the FFRMS as they apply for
FEMA programs.
Section G.2. of FEMA’s FFRMS policy
discusses flood risk minimization for
facilities. FEMA’s FFRMS policy uses
the FFRMS flood elevation and
corresponding floodplain to establish
the minimum level to which a structure
or facility must be resilient. For
facilities projects that are subject to the
FFRMS, the FFRMS flood elevation
represents the magnitude of flooding
that must be considered in
incorporating flood resilient design
features into facility project designs.
Publications/Engineer-Regulations/udt_43546_
param_orderby/Pub_x0020_Number/udt_43546_
param_direction/descending/?udt_43546_param_
page=3 (last accessed Jan. 24, 2024).
136 https://www.fema.gov/sites/default/files/202005/DRRA1235b_Consensus_BasedCodes_
Specifications_and_Standards_for_Public_
Assistance122019.pdf (last accessed Apr. 2, 2024).
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This approach allows the FFRMS to be
integrated as one element of projectspecific comprehensive design methods,
and leaves open the possibility of more
prescriptive design requirements as
infrastructure design methods improve,
better incorporating consideration of
continually changing hazard conditions.
FEMA further believes that revising
the text of § 9.11 to clarify that
mitigation measures for facilities subject
to FFRMS must be designed to be
resilient to the FFRMS flood elevation,
as the commenter requested, is not
necessary. As the commenter noted, this
point is made in the FFRMS policy, and
FEMA does not believe changes to the
regulatory text are required to achieve
the FFRMS resilience.
Comment: One commenter raised
several questions regarding FFRMS
implementation and facilities. The
commenter stated that building
transportation infrastructure to survive
extreme events is a good investment, but
the FFRMS is overly conservative and
based on risk of low probability. The
commenter asked about the
applicability of part 9 and the FFRMS
to a range of potential actions from
linear transportation structures to
roadways, bridges, and culverts and
raised concerns with how FFRMS
application to these types of actions
might raise conflicts with other Federal,
State, or local agencies. The commenter
also stated concerns about elevating
facilities and provided an example of
where the FFRMS would elevate a
bridge to a height greater than the floodprone height of the connecting roads.
The commenter recommended FEMA
clarify roadways and associated bridges
and culverts were not required to
perform an alternatives analysis for their
location in a floodplain.
FEMA Response: FEMA appreciates
the commenter’s concerns regarding the
applicability of FFRMS and part 9 to
specific infrastructure projects. FEMA
defines both ‘‘structures’’ and
‘‘facilities’’ in § 9.4 and the agency
believes these definitions are
sufficiently clear to explain FFRMS and
part 9 applicability to specific actions.
Executive Order, 11988, as amended,
requires both structures and facilities be
resilient against current and future flood
hazards. FEMA believes that, as
described by the commenter, roadways,
bridges, culverts, and linear
transportation structures would fall
under the definition of ‘‘facilities’’ for
this part and thus would not necessarily
be exempt from part 9.
As explained above, FEMA defines
‘‘action subject to the FFRMS’’ as ‘‘any
action where FEMA funds are used for
new construction, substantial
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improvement, or to address substantial
damage to a structure or facility.’’ The
FFRMS applies to grants for projects
funding the new construction,
substantial improvement, or repair of
substantial damage under FEMA
programs such as IA, PA, and HMA
programs, and grants processed by
FEMA’s GPD. FEMA does not fund
repairs or improvements to Federal-aid
roads, and this rulemaking would not be
applicable to those roads. Rather, the
FHWA regulations would govern those
actions. Where FEMA may provide
funding, FEMA’s FFRMS policy
provides details on how FEMA will
coordinate with other agencies when
implementing actions in the same area
as another Federal agency. See FFRMS
policy Section H, page 9. When
coordinating with other Federal
agencies, FEMA generally defaults to
the FFRMS policy approach in FEMA’s
FFRMS policy, as appropriate. Where
FEMA provides funding for these
activities, FFRMS applies to improve
resilience to facilities against both
current and future flood risks.
In the FFRMS policy, FEMA
addresses both structures and facilities
and how the agency will apply FFRMS
to each. See section G of the FFRMS
policy for more guidance on facilities.
Note FEMA edited the FFRMS policy
accompanying this final rule to further
clarify that section G.2 applies to
‘‘facilities,’’ by using the term
‘‘Facilities’’ instead of the term ‘‘NonStructure Facilities.’’
Further, § 9.11(d)(6) states when
FEMA is providing funding, a more
restrictive Federal, State, or local
floodplain management standard will be
applied. Section G.2 of FEMA’s FFRMS
policy further discusses flood risk
minimization for facilities and clarifies
that FEMA would also allow methods
other than elevation to be used to
improve resilience against flooding up
to the flood elevation of the FFRMS
floodplain in conjunction with any
other applicable codes and standards.137
FEMA’s FFRMS policy uses the
FFRMS flood elevation and
corresponding floodplain to establish
the minimum level to which a structure
or facility must be resilient. The
minimization requirements are similar
to how FEMA currently implements
137 See FFRMS Policy, pg. 8, ‘‘Particularly in
cases where elevation may not be feasible or
appropriate for non-structure facilities, the FFRMS
floodplain, determined according to the process
described in section C of this policy, establishes the
level to which a structure or facility must be
resilient. Resilience measures include using
structural or nonstructural methods to reduce or
prevent damage; elevating a structure; or, where
appropriate, designing it to adapt to, withstand and
rapidly recover from a flood event.’’
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part 9 for the 1 percent and 0.2 percent
annual chance floods. For facility
projects that are subject to the FFRMS,
the FFRMS flood elevation represents
the magnitude of flooding that must be
considered in incorporating flood
resilient design features into facility
project designs. This approach allows
the FFRMS to be integrated as one
element of project-specific
comprehensive design methods and
leaves open the possibility of more
prescriptive design requirements as
infrastructure design methods improve,
better incorporating consideration of
continually changing hazard conditions.
Further, as explained above, FEMA
already incorporates FHWA Hydraulic
Engineering Circulars 17 and 25
(Highways in the River Environment and
Highways in the Coastal Environment)
into its Public Assistance grant
requirements.
To address the commenter’s concerns
regarding overly conservative methods,
FEMA notes the FFRMS is a flexible
framework to define the floodplain that
allows agencies to choose among several
approaches to expand the base
floodplain to a higher vertical elevation
and corresponding horizontal extent for
all Federally funded projects. FEMA’s
FFRMS policy is not a one-size-fits-all
approach. Rather, FEMA’s policy
approach is flexible to address
criticality of the action being taken, data
availability based on the location of the
action, and equity concerns.
Finally, the final rule does not change
many of the current requirements for
proposed actions. Proposed actions
involving roadways, bridges, and
culverts located in or impacting
floodplains and wetlands continue to be
subject to alternatives analysis under
Executive Order 11988, as amended,
and part 9. For certain small-scale
actions under FEMA’s PA program, the
proposed rule increases the dollar value
thresholds for projects that are exempt
from the 8-step process or that are
subject to an abbreviated 8-step review.
Comment: The same commenter
stated that enhancing resilience should
be the responsibility of the States to
enable community-specific strategies.
The commenter requested clarification
on whether States and localities could
use Federal funds for resilience
measures, such as raising or widening
roadways and bridges to meet the
increased vertical elevation and
expanded horizontal floodplain while
still qualifying for FEMA funding. The
commenter further stated the FFRMS
would remove risk to structures from
risk-based design criteria some States
had in place and would require a onesize-fits-all approach for bridge-sized
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structures. The commenter also noted
some non-Federal partners might not
allow States to select the FFRMS
approach. The same commenter stated
the FFRMS approaches added an
unnecessary factor of safety for
proposed actions, as many States would
replace a structure multiple times before
the CISA floodplains would take place.
The commenter stated it was impossible
to accurately predict change over long
periods of time due to the nature of
these systems.
FEMA Response: FEMA agrees that
States and localities should lead their
own efforts to enhance resilience.
FFRMS is required for Federal actions
that are subject to the FFRMS to protect
against current and future flood risks
and help ensure that Federally-funded
projects last as long as intended.
FEMA’s FFRMS policy is not a one-sizefits-all approach. Rather, FEMA’s policy
approach is flexible to address
criticality of the action being taken, data
availability based on the location of the
action, and equity concerns. Risk is an
inherent factor in applying all of the
FFRMS approaches. FEMA considers
the criticality of the action in
determining the level of risk that must
be considered in minimizing flood
hazards. Critical actions are those
actions for which even a slight chance
of flooding is too great and would be
protected to a higher level under the
FFRMS.
FEMA explained above the
applicability of the FFRMS and the 8step process generally to facilities. As
noted above, part 9 only applies to
FEMA actions. Where FEMA may
provide funding, FEMA’s FFRMS policy
provides details on how FEMA will
apply the appropriate FFRMS approach
to improve resilience to facilities against
both current and future flood risks.
SLTTs can provide input into the
determination. Pursuant to 44 CFR
9.11(d)(6), a more restrictive Federal,
State, or local standard will be used in
lieu of the FFRMS. FEMA values
additional input from SLTT partners
and the public in the 8-step process.
FEMA notes, where the agency provides
funding, any increased costs are
generally eligible for funding under
FEMA’s assistance programs subject to
cost share requirements.
Regarding the commenter’s concerns
about replacing a facility or structure
several times over a period of time,
FEMA’s preferred approach (CISA)
incorporates service life as part of
determining the FFRMS floodplain.
FEMA understands the commenter’s
concerns and will determine the
appropriate service life on a case-bycase basis for each action. The FFRMS
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Job Aid provides additional information
on service life and how FEMA will
make those individual
determinations.138
Comment: The same commenter also
wrote by raising the base flood
elevation, the FFRMS would make the
floodway obsolete and asked if FEMA
would stop using floodways to regulate
construction, and let local governments
decide how much development was
acceptable while adhering to the
FFRMS. The commenter further
recommended ‘‘temporary
encroachments,’’ such as temporary
structures required for bridge
construction, be explicitly exempted
from the FFRMS.
FEMA Response: FEMA assumes the
commenter’s reference to the base flood
elevation is the base flood elevation
established and applicable under the
NFIP. This final rule does not raise the
base flood elevation under the NFIP.
The NFIP is a program through which
property owners in participating
communities can purchase Federal
flood insurance as a protection against
flood losses.139 As a condition of
eligibility, a community must adopt and
enforce floodplain management
regulations that incorporate NFIP
minimum floodplain management
criteria developed by the
Administrator.140 Further information
regarding FEMA’s minimum floodplain
management standards for the NFIP can
be found at 44 CFR part 59 et seq. Any
update to those standards would require
a rulemaking to revise the appropriate
regulatory sections of the CFR. By
contrast, the FFRMS as implemented by
this rulemaking, only applies to actions
where FEMA funds are used for new
construction, substantial improvement,
or repairs to address substantial damage
to structures and facilities.141
As explained above, § 9.4 defines both
‘‘floodway’’ and ‘‘regulatory floodway.’’
The definition of ‘‘floodway’’ was not
changed with this final rule and the
definition of ‘‘regulatory floodway’’ was
FFRMS Job Aid, pg. 14.
U.S.C. 4011(a).
140 42 U.S.C. 4011(a) and (b); 42 U.S.C. 4102; 44
CFR 59.2(b), 59.22(a)(3), 60.1(d).
141 See ‘‘Guidelines for Implementing Executive
Order 11998, Floodplain Management, and
Executive Order 13690, Establishing a Federal
Flood Risk Management Standard and a Process for
Further Soliciting and Considering Stakeholder
Input,’’ 80 FR 64008 (Oct. 22, 2015) (providing
notice of the availability of the Revised Guidelines
in the docket for the rulemaking at https://
www.regulations.gov/document/FEMA-2015-00060358 (main content) and https://
www.regulations.gov/document/FEMA-2015-00060372 (appendices)) also available at https://
www.fema.gov/sites/default/files/documents/fema_
implementing-guidelines-EO11988-13690_
10082015.pdf (last accessed Mar. 11, 2024).
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139 42
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further clarified by eliminating the
reference to a specific amount set by the
NFIP and instead defining the term to
mean the area regulated by Federal,
State, or local requirements to provide
for the discharge of the base flood so
that the cumulative rise in water surface
is no more than a designated amount
above the base flood elevation. These
edits more accurately encompass
situations where communities have
adopted more restrictive floodway
definitions than the minimum specified
by the NFIP. The changes are intended
to help stakeholders better understand
what a regulatory floodway is and how
it is determined without tying the term
to a specific amount that can change
under the NFIP.
Regarding temporary encroachments,
§ 9.5(c)(1) exempts actions under PA
category B pursuant to section 403 of
the Stafford Act. Those actions may
include temporary repairs to structures
and facilities. Any temporary work
associated with permanent work,
however, is generally included in the 8step analysis for the permanent action.
Comment: A commenter stated the
RIA was limited and inadequate and
cited several examples of where FEMA
should improve the RIA. Specifically,
the commenter stated that FEMA
attempted to isolate a population of
actions where the standards would be
applied, limiting the analysis to
structures that will be paid for with
Federal funds and did not capture the
costs and benefits of the regulatory
alternatives that would be associated
with applying the FFRMS to Federal
licenses and permits. The commenter
also stated that FEMA did not consider
the impacts of the new standards on the
floodplain regulations mandated for
communities that participate in the
NFIP and the economic impacts of
applying the new standards to NFIP
floodplain mapping and the
accreditation of levees under the NFIP.
The commenter further stated
accreditation was mapping and the
scope of 44 CFR part 9 included
application of the 8-step process to NFIP
mapping.
FEMA Response: FEMA appreciates
the commenter’s suggestions regarding
the RIA but believes the commenter’s
requests go beyond the scope of this
rulemaking. FEMA disagrees with the
commenter that the RIA should capture
costs and benefits associated with
Federal licenses and permits. The
changes made to part 9 to implement
FFRMS only apply to actions subject to
the FFRMS. FEMA defines ‘‘action
subject to the FFRMS’’ as ‘‘any action
where FEMA funds are used for new
construction, substantial improvement,
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or to address substantial damage to a
structure or facility,’’ consistent with
Executive Order 11988, as amended,
and the Revised Guidelines. The FFRMS
applies to grants for projects funding the
new construction, substantial
improvement, or repair of substantial
damage under FEMA programs such as
IA, PA, and HMA programs, and grants
processed by FEMA’s GPD.
Accordingly, the scope of FEMA’s
regulatory impact analysis is limited to
the FEMA projects where the FFRMS
standards would be applied.
FEMA further does not believe the
agency is required to consider the
impacts of the new standards on the
floodplain regulations mandated for
communities that participate in the
NFIP and the economic impacts of
applying the new standards to NFIP
floodplain mapping and the
accreditation of levees under the NFIP.
As explained above, the NFIP is a
program through which property
owners in participating communities
can purchase Federal flood insurance as
a protection against flood losses. As a
condition of eligibility, a community
must adopt and enforce floodplain
management regulations that
incorporate NFIP minimum floodplain
management criteria developed by the
Administrator. Further information
regarding FEMA’s minimum floodplain
management standards for the NFIP can
be found at 44 CFR part 59 et seq. By
contrast, the FFRMS as implemented by
this rulemaking, only applies to actions
where FEMA funds are used for new
construction, substantial improvement,
or repairs to address substantial damage
to structures and facilities.
G. FFRMS Approaches
1. CISA
Several commenters expressed
support for the use of the CISA but
sought additional clarification on
implementation of the approach. A few
commenters raised concerns with the
use of the CISA.
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General Comments
Comment: A commenter stated
utilizing the CISA to determine the
FFRMS floodplain where possible was
of critical importance as CISA offered a
forward-thinking approach to improve
resilient development considering both
current and future flood risk. The
commenter noted the necessary data
and modeling capabilities underpinning
CISA have continued to expand in
recent years, making CISA an
increasingly practicable methodology
for more accurately determining the
extent of the FFRMS floodplain.
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FEMA Response: FEMA agrees with
the commenter that since the
introduction of the CISA in 2015,
additional data has become available to
better inform CISA.142 FEMA believes
data availability and actionability will
continue to advance for CISA in the
future. Specifically, FEMA expects more
data will be developed, supporting
broader-based application of CISA as
agencies implement the FFRMS, and
this data will be considered and
incorporated into future updates of the
FFRMS and FEMA’s implementation
thereof. FEMA’s policy approach is to
use CISA where available, recognizing
the data is still not available in every
location.
Comment: Two commenters wrote the
CISA did not promote predictability or
reduce uncertainty as required by
Executive Orders 12866 and 13563 and
instead left the public to guess a
standard from a range of possible
climate scenarios. The commenters
stated questions regarding the flood
hazard area and elevation remain
unanswered within the CISA and the
approach lacked specific criteria for
making those determinations. The
commenters noted FEMA did not
propose to require the use of CISA in
the agency’s 2016 NPRM because of the
lack of available CISA data and stated
those concerns still exist. The
commenters further stated that the lack
of coherent decision criteria within the
CISA raised concerns about the clarity
of Congressional authority guiding the
standard.
FEMA Response: FEMA disagrees
with the commenters that the CISA
results in uncertainty for the public as
the agency provided information on the
CISA with the NPRM. Appendix H of
the Revised Guidelines 143 provides an
overview of the available and actionable
data for CISA, which is the basis for
interagency supporting tools to
implement the FFRMS. As explained
above, the Science Subgroup convened
by the Flood Resilience Interagency
Working Group (IWG) of the National
142 See ‘‘Federal Flood Risk Management
Standard Climate-Informed Science Approach
(CISA) State of the Science Report,’’ available at
https://www.whitehouse.gov/wp-content/uploads/
2023/03/Federal-Flood-Risk-ManagementStandard-Climate-Informed-Science-ApproachCISA-State-of-the-Science-Report.pdf?trk=public_
post_comment-text (last accessed Jan. 24, 2024),
https://www.fema.gov/floodplain-management/
intergovernmental/white-house-flood-resilienceinteragency-working-group (last accessed Jan. 24,
2024), and posted to the public docket for this
rulemaking at https://www.regulations.gov/
document/FEMA-2023-0026-0007.
143 Available at https://www.fema.gov/sites/
default/files/documents/fema_implementingguidelines-EO11988-13690_10082015.pdf (last
accessed Jan. 24, 2024).
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Climate Task Force published the
FFRMS CISA State of the Science
Report.144 The FFRMS CISA State of the
Science Report refines the initial
framework from Appendix H and
specifically identifies the latest sea level
rise projections from the National
Climate Assessment as actionable,
stating that each agency should factor
projected regional/local sea level change
into Federal investment decisions
located as far inland as the extent of
estimated tidal influence, now and in
the future, using the most appropriate
methods for the scale and consequence
of the decision.145 This report is the
basis of the interagency implementation
and supporting tools such as the FFRMS
Job Aid.146 FEMA is relying on these
interagency processes to select and
evaluate the data and methods used.
FEMA published the FFRMS Job Aid
and the FFRMS CISA State of the
Science Report in the public docket
associated with this rulemaking.147
FEMA also posted the FFRMS Job Aid
on its website 148 and currently plans to
use the methodology found in the
FFRMS Job Aid to determine the
FFRMS floodplain as explained above.
FEMA believes the policy approach
detailed in the agency’s FFRMS Policy
is sufficiently certain for FFRMS
implementation. As detailed in the
FFRMS Policy, FEMA will use the CISA
when such data is available and
actionable as further explained in
Appendix H of the Revised
Guidelines 149 and refined in the FFRMS
CISA State of the Science Report.150
Where the CISA data is not available
and/or actionable, the agency will use
either the FVA or 0.2PFA depending on
the criticality of the action and data
availability. Consistent with the
144 Available at https://www.whitehouse.gov/wpcontent/uploads/2023/03/Federal-Flood-RiskManagement-Standard-Climate-Informed-ScienceApproach-CISA-State-of-the-ScienceReport.pdf?trk=public_post_comment-text (last
accessed Jan. 24, 2024), https://www.fema.gov/
floodplain-management/intergovernmental/whitehouse-flood-resilience-interagency-working-group
(last accessed Jan. 24, 2024), and posted to the
public docket for this rulemaking at https://
www.regulations.gov/document/FEMA-2023-00260007.
145 FFRMS CISA State of the Science Report, pg.
23.
146 See https://www.fema.gov/sites/default/files/
documents/fema_ffrms-floodplain-determinationjob-aid.pdf (last accessed Jan. 24, 2024) and posted
to the public docket for this rulemaking at https://
www.regulations.gov/document/FEMA-2023-00260004.
147 See https://www.regulations.gov/document/
FEMA-2023-0026-0004.
148 See https://www.fema.gov/sites/default/files/
documents/fema_ffrms-floodplain-determinationjob-aid.pdf (last accessed Jan. 24, 2024).
149 Revised Guidelines, pgs. 16–17 and 50–52.
150 FFRMS CISA State of the Science Report, pgs.
7–8.
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information in the FFRMS CISA State of
the Science Report regarding data
availability/actionability,151 FEMA will
initially rely on the methodology from
the FFRMS Job Aid 152 to make the
CISA, FVA, and 0.2PFA determinations.
FEMA understands data availability
and actionability is a key factor in
completing this analysis in a consistent,
equitable manner. As stated above, since
the introduction of the CISA in 2015,
additional data has become available to
better inform CISA.153 FEMA believes
data availability and actionability will
continue to advance for CISA in the
future. However, as actionable climate
data are currently only available along
low-lying coastal shorelines on the
Atlantic and Gulf Coasts not subject to
runup or overtopping pursuant to the
FFRMS CISA State of the Science
Report,154 FEMA is proposing the FVA
and 0.2PFA alternatives in the absence
of actionable CISA data. FEMA notes,
consistent with current practice, the
agency will continue make the
floodplain determinations as part of the
action taken, reducing the burden on
applicants in the process. FEMA
estimated the cost for determining the
appropriate FFRMS floodplain in the
Administrative Cost section within the
RIA.
CISA Implementation
Commenters inquired as to how
FEMA would implement CISA as part of
the agency’s FFRMS implementation.
Comment: A commenter requested
FEMA amend § 9.7(c)(i)(A) to require an
assumption that ‘‘climate impacts
would be more rather than less severe
under conditions of uncertainty.’’
FEMA Response: FEMA is not
codifying the specific climate scenarios
to be used as part of the CISA analysis.
As previously explained, FEMA is
relying on interagency tools to
determine CISA flood elevations and
corresponding horizontal floodplains.
FEMA will initially implement this final
rule using the FFRMS Job Aid that was
published in the public docket
151 Id.
152 FFRMS
Job Aid, pgs. 7–11 generally.
‘‘Federal Flood Risk Management
Standard Climate-Informed Science Approach
(CISA) State of the Science Report,’’ available at
https://www.whitehouse.gov/wp-content/uploads/
2023/03/Federal-Flood-Risk-ManagementStandard-Climate-Informed-Science-ApproachCISA-State-of-the-Science-Report.pdf?trk=public_
post_comment-text (last accessed Jan. 24, 2024),
https://www.fema.gov/floodplain-management/
intergovernmental/white-house-flood-resilienceinteragency-working-group (last accessed Jan. 24,
2024), and posted to the public docket for this
rulemaking at https://www.regulations.gov/
document/FEMA-2023-0026-0007.
154 FFRMS CISA State of the Science Report, pgs.
22–23 and 28.
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153 See
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associated with this rulemaking along
with the proposed rule. The FFRMS Job
Aid is also on FEMA’s website.155
Comments: One commenter
characterized CISA as a framework built
upon continually evolving models,
projections, and assumptions regarding
climate change and anticipated future
conditions. The commenter stated the
decision criteria under the CISA
approach was not adequately defined in
the rule and the information provided
about CISA in the rule regarding the
best available information remained
unspecified, raising concerns about
project implementation and general
uncertainty. Another commenter
recommended that FEMA make clear its
ability to update how it implements the
FFRMS approaches as necessary
according to the latest climate science,
rather than going through a rulemaking
process for each successive update. The
commenter stated that the CISA State of
the Science Report provided robust
information on CISA implementation
but because of its length was not
necessarily an easily accessible
reference document. The commenter
recommended providing succinct and
practical guidance on CISA to facilitate
implementation of the approach. The
comment suggested that such guidance
could including a representative list of
acceptable data sources and guidance on
how to interpret and apply these
sources (for instance, how to choose an
appropriate timeline or planning
scenario).
FEMA Response: FEMA’s explanation
of the CISA is consistent with Executive
Order 11988, as amended, and the
Revised Guidelines. FEMA has not
provided specific definitions of each
approach under FFRMS but rather
describes each in § 9.7 and also in the
FFRMS policy. FEMA believes these
explanations are sufficiently clear and
will not result in ambiguity or
misunderstanding because they are
consistent with the Executive Order and
Revised Guidelines.
FEMA further believes the
information provided is consistent with
Executive Order 11988, as amended; the
Revised Guidelines; and the CISA State
of the Science report. The information is
also sufficient to implement FFRMS and
CISA. FEMA will rely on 44 CFR 9.7,
FEMA Policy 104–008–2: Guidance on
the Use of Available Flood Hazard
155 See https://www.fema.gov/sites/default/files/
documents/fema_ffrms-floodplain-determinationjob-aid.pdf (last accessed Jan. 24, 2024) and posted
to the public docket for this rulemaking at https://
www.regulations.gov/document/FEMA-2023-00260004.
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Information,156 the Revised Guidelines,
and the FFRMS CISA State of the
Science Report in determining whether
CISA and flood hazard data is available
and actionable. The FFRMS CISA State
of the Science Report 157 is the basis of
the interagency implementation and
supporting tools such as the FFRMS Job
Aid.158 FEMA published the FFRMS Job
Aid and the FFRMS CISA State of the
Science Report in the public docket
associated with this rulemaking.159
FEMA also posted the FFRMS Job Aid
on its website.160
FEMA intends to leverage the FFRMS
Job Aid when implementing FFRMS.
FEMA will initially rely on the
methodology found in the FFRMS Job
Aid for determining the FFRMS
floodplain and, as explained elsewhere
in our responses, will accept higher
standards provided by other Federal,
State, or local entities in accordance
with 44 CFR 9.11(d)(6) so long as it is
as least as restrictive as FEMA’s FFRMS
floodplain determination and adopted
by the community for use, including
where communities have adopted local
CISA. FEMA will continue to
collaborate across the Federal
government to develop tools to facilitate
the implementation of CISA and the
FFRMS. The IWG recently released a
beta version of the Federal Flood
Standard Support Tool (FFSST), a novel
interactive, map-based tool that
incorporates new data to help users
identify if a Federally funded project is
in the FFRMS floodplain, for
comment.161 FEMA intends to provide
additional resources to assist
stakeholders as FFRMS is implemented.
156 Available at https://www.fema.gov/sites/
default/files/2020-04/Available_Flood_Hazard_
Information_Policy_104-008-2.pdf (last accessed
Mar. 12, 2024). The FFRMS proposed and final
policies reference this existing FEMA policy in
Section D.1.
157 Available at https://www.whitehouse.gov/wpcontent/uploads/2023/03/Federal-Flood-RiskManagement-Standard-Climate-Informed-ScienceApproach-CISA-State-of-the-ScienceReport.pdf?trk=public_post_comment-text (last
accessed Jan. 24, 2024), https://www.fema.gov/
floodplain-management/intergovernmental/whitehouse-flood-resilience-interagency-working-group
(last accessed Jan. 24, 2024), and posted to the
public docket for this rulemaking at https://
www.regulations.gov/document/FEMA-2023-00260007.
158 See https://www.fema.gov/sites/default/files/
documents/fema_ffrms-floodplain-determinationjob-aid.pdf (last accessed Jan. 24, 2024) and posted
to the public docket for this rulemaking at https://
www.regulations.gov/document/FEMA-2023-00260004.
159 See https://www.regulations.gov/document/
FEMA-2023-0026-0004.
160 See https://www.fema.gov/sites/default/files/
documents/fema_ffrms-floodplain-determinationjob-aid.pdf (last accessed Jan. 24, 2024).
161 89 FR 25674 (Apr. 11, 2024).
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Federal Register / Vol. 89, No. 133 / Thursday, July 11, 2024 / Rules and Regulations
Consistent with Executive Order
11988, as amended, and the Revised
Guidelines, CISA requirements will
change as the available and actionable
data change. The MitFLG in
consultation with the Federal
Interagency Floodplain Management
Task Force (FIFM–TF) will reassess
FFRMS annually, after seeking
stakeholder input, and provide
recommendations to the WRC to update
FFRMS, including the FVA, if
warranted based on accurate and
actionable science that takes into
account changes to climate and other
changes in flood risk. The WRC shall
issue an update to FFRMS at least every
5 years.162
Comments: Three commenters
requested that FEMA clarify how it will
determine that CISA data are available
and actionable when determining the
FFRMS floodplain. One of the
commenters asked whether CISA data
availability was dependent on FEMA
mapping using CISA data. Another
commenter requested clarity on how
CISA would be assessed. The
commenter noted the CISA data must be
‘‘existing’’ and both ‘‘available’’ and
‘‘actionable,’’ and stated this implied
that entities proposing a project were
only obligated to rely on information
that was already existing, available, and
actionable, which was inconsistent with
the rest of the rule that focused on
creating project-specific assessments.
FEMA Response: Data availability is
not dependent on the development of
FEMA regulatory mapping products
(such as effective Flood Insurance Rate
Maps [FIRMs]) utilizing CISA data. The
Revised Guidelines require agencies to
utilize the ‘‘best available and
actionable science.’’ The Revised
Guidelines state that in this context,
‘‘best-available’’ generally refers to
science, data or information that is:
• Transparent—clearly outlines
assumptions, applications, and
limitations;
• Technically credible—transparent
subject matter or more formal external
peer review, as appropriate, of processes
and source data;
• Usable—relevance and accessibility
of the information to its intended users;
• Legitimate—perceived by
stakeholders to conform to recognized
principles, rules, or standards.
Legitimacy might be achieved by
existing government planning processes
with the opportunity for public
comment and engagement.163
162 Section 4, Executive Order 13690, 80 FR 6425
(Feb. 4, 2015).
163 See Revised Guidelines at pgs. 16–17.
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The Revised Guidelines further state
that actionable science includes
theories, data, analyses, models,
projections, scenarios and tools that are:
• Relevant to the decision under
consideration;
• Reliable in terms of its scientific or
engineering basis and appropriate level
of peer review;
• Understandable to those making the
decision;
• Supportive of decisions across wide
spatial, temporal, and organizational
ranges, including those of time-sensitive
operational and capital investment
decision-making;
• Co-produced by scientists,
practitioners, and decision-makers, and
meet the needs of and are readily
accessible by stakeholders.
These concepts of best-available and
actionable science are further described
in Part II, Step 1 of the Revised
Guidelines, in the context of the various
approaches for determining a floodplain
and in Appendix H of the Revised
Guidelines specifically as it relates to
the CISA.164
As previously explained, the FFRMS
CISA State of the Science Report 165
contains an up-to-date review and
update of the best-available, actionable
science that can support application of
the CISA, and is the basis of the
interagency implementation and
supporting tools such as the FFRMS Job
Aid.166 FEMA will initially rely on the
methodology in the FFRMS Job Aid to
determine the FFRMS floodplain when
implementing this final rule.
FEMA disagrees with the commenter
that requiring CISA data be available
and actionable is inconsistent with the
rest of the rule. The 8-step process is
action-specific, and the floodplain
determination is made based on the
location of the action, but the data to
determine the floodplain at that location
must be available and actionable for
CISA to be utilized. FEMA’s FFRMS
policy further defines where CISA is
applicable.
Revised Guidelines at pgs. 16–17.
at https://www.whitehouse.gov/wpcontent/uploads/2023/03/Federal-Flood-RiskManagement-Standard-Climate-Informed-ScienceApproach-CISA-State-of-the-ScienceReport.pdf?trk=public_post_comment-text (last
accessed Jan. 24, 2024), https://www.fema.gov/
floodplain-management/intergovernmental/whitehouse-flood-resilience-interagency-working-group
(last accessed Jan. 24, 2024), and posted to the
public docket for this rulemaking at https://
www.regulations.gov/document/FEMA-2023-00260007.
166 See https://www.fema.gov/sites/default/files/
documents/fema_ffrms-floodplain-determinationjob-aid.pdf (last accessed Jan. 24, 2024) and posted
to the public docket for this rulemaking at https://
www.regulations.gov/document/FEMA-2023-00260004.
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165 Available
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Comments: FEMA received comments
regarding the service life of proposed
actions and how the agency would
calculate the service life of actions. One
commenter suggested FEMA provide
guidelines on how to determine an
appropriate period. Another commenter
noted FEMA used a default 50-year
lifecycle analysis that would not be
appropriate for all actions and requested
FEMA provide information on how the
50-year lifecycle timeline was
determined, as well as guidelines on
how to determine the appropriate
lifecycle on a case-by-case basis.
FEMA Response: FEMA’s analysis of
the rule’s benefits relied upon a report
defaulting to a 25-year and 50-year
lifecycle for all actions. However, when
making floodplain determinations,
FEMA intends to determine the
appropriate service life on a case-bycase basis for each action. This will
ensure that FEMA evaluates floodplain
hazards over the appropriate lifecycle
for each action. The FFRMS Job Aid
provides additional information on
service life and how FEMA will make
those individual determinations.167
FEMA’s RIA used the 2022 report
titled ‘‘A Benefits Analysis of Increased
Freeboard for Public and Nonresidential
Buildings in Riverine and Coastal
Floodplains,’’ (‘‘2022 report’’) in its
analysis of benefits. The 2022 report
calculated benefits for increased
freeboard over 25-year and 50-year
useful lives under a variety of climate
change scenarios.168 FEMA’s analysis
considered the benefits of the rule
assuming a 50-year useful life.
Comment: A commenter stated some
states, such as California, had guidelines
on sea level rise and those guidelines
were inconsistent with the CISA +5 feet
option discussed in the rule’s regulatory
impact analysis. The commenter stated
such an elevation requirement would be
overbuilt per those State guidelines. The
commenter stated that CISA would be
overly conservative for many locations,
because of what the commenter
characterized as CISA’s one-size-fits-all
approach.
FEMA Response: FEMA’s regulatory
impact analysis utilizes an assumption
of +5 feet for CISA as an analysis point.
The +5 feet is an assumption because
FEMA does not currently have detailed
enough data to estimate the average
CISA level within the United States
based on currently available CISA data
and the additional CISA data that will
167 See
FFRMS Job Aid, pg. 14.
FEMA BCA Toolkit recommends using a
50-year project useful lift for public buildings and
a 25-year project useful life for nonresidential
buildings.
168 The
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continue to become available over time.
However, CISA is not a one-size-fits-all
approach. FEMA notes the FFRMS
Floodplain Determination Job Aid
indicates the CISA method is
recommended for actions along lowlying coastal shorelines on the Atlantic
and Gulf Coasts. For Pacific coasts and
other coasts with bluffs, FEMA may
initially use the FVA approach.
SLTTs can provide input into the
determination. Pursuant to 44 CFR
9.11(d)(6), a more restrictive Federal,
State, or local standard will be used,
including local CISA data and methods
that have been adopted by a community
for use in floodplain management, as
long as such data result in a more
restrictive standard.
FEMA’s FFRMS policy is not a onesize-fits-all approach; rather, the
agency’s policy approach is flexible to
address criticality of the action being
taken, data availability based on the
location of the action, and equity
concerns. FEMA is not codifying the
specific climate scenarios to be used as
part of the CISA analysis. As previously
explained, FEMA is relying on
interagency tools to determine CISA
flood elevations and corresponding
horizontal floodplains. FEMA will
initially implement this final rule using
the FFRMS Job Aid that published in
the public docket associated with this
rulemaking along with the proposed
rule. The FFRMS Job Aid is also on
FEMA’s website.169
Comment: The same commenter
stated that when designing bridges and
embankments, the CISA approach
considers impacts from projected land
cover/land use changes, long-term
erosion, and other processes that may
alter flood hazards over the lifecycle of
the Federal investment. The commenter
asked how the estimates for long-term
erosion and scour would be determined.
This commenter further stated the
outcomes from these estimates were
subject to uncertainty, resulting in
overdesign and greatly reducing the
likelihood of the CISA data actually
occurring.
FEMA Response: FEMA’s FFRMS
policy provides details on how FEMA
will implement FFRMS for facilities.
This analysis is completed on a case-bycase basis and may require the services
of a professional engineer, as
appropriate, consistent with FEMA
program requirements. More
information on consideration of flood
169 See https://www.fema.gov/sites/default/files/
documents/fema_ffrms-floodplain-determinationjob-aid.pdf (last accessed Jan. 24, 2024) and posted
to the public docket for this rulemaking at https://
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characteristics such as erosion and
scour can be found in the Revised
Guidelines.170
Whether CISA data are available and/
or actionable will depend in part upon
the location of the action being taken.
FEMA believes the policy approach
detailed in the agency’s FFRMS policy
is sufficiently certain for FFRMS
implementation. As detailed in the
FFRMS policy, FEMA will use the CISA
where such data is available and
actionable. FEMA is relying on
interagency tools to determine CISA
flood elevations and corresponding
horizontal floodplains. Where the CISA
data are not available and actionable,
the agency will leverage either the FVA
or 0.2PFA depending on the criticality
of the action and data availability.
Where the CISA data are available and
actionable, the CISA floodplain must be
at least as restrictive as the 1 percent
annual chance flood elevation or
0.2PFA, again depending on the
criticality of the action. In this way,
FEMA has addressed equity concerns in
the policy approach, specifically to
mitigate the likelihood of over- and
under-building. FEMA believes that
allowing for a lower standard for noncritical actions helps address concerns
related to overbuilding. Selecting the
lower approach for non-critical actions
will still result in a higher level of
resilience than the current requirements
under part 9 while also taking equity
and cost-effectiveness considerations
into account.
CISA Applicability
Comment: A commenter requested
FEMA apply the CISA to all of the
agency’s mapping and map revision
processes. The commentor wrote that
letters of map amendment (LOMAs) and
letters of map revision-based on fill
(LOMR–Fs) essentially allowed FEMA
to piecemeal exempt properties and
stated the combination of Executive
Orders and statutes required FEMA to
build a robust and well-informed
mapping program to guide development
away from floodplains. The commenter
stated the exclusion of LOMAs and
LOMR–Fs from FFRMS created an
exception that would swallow the rule.
FEMA Response: FEMA appreciates
the commenter’s support of the CISA
and understands the commenter’s
concerns regarding LOMAs and LOMR–
Fs. FEMA is not making changes to the
agency’s NFIP mapping process with
this rulemaking or accompany FFRMS
170 See Revised Guidelines pg. 23 for information
on flooding characteristics and Appendix H of the
Revised Guidelines for information on the CISA,
pgs. 20–22.
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policy. The NFIP’s regulations on
mapping and changes to FEMA maps
are found at 44 CFR part 70 et seq.
Further, the proposed changes to part 9
do not affect implementation of the
NFIP’s floodplain management
regulations. Those regulations are found
at 44 CFR part 59 et seq. The framework
that FEMA uses in part 9, including the
revised definition of floodplain
applicable to actions subject to the
FFRMS under this rule, is distinct from
NFIP mapping. FEMA believes that the
flexibility outlined in 44 CFR 9.7 and
the practice of best available
information will allow the application
of part 9 to adjust to any future change
made in the NFIP mapping process.
CISA and Equity Considerations
Comment: A commenter requested
FEMA consider inequities in access to
the best available climate science as
some communities may not have access
to the CISA data. The commenter
acknowledged FEMA’s proposed
alternatives to the CISA but requested
the agency consider how this rule
would unintentionally exacerbate
inequities in flood preparedness and
safety across the country and how
FEMA would distribute Federal funding
and other financial assistance to address
these discrepancies.
FEMA Response: FEMA’s revisions to
part 9 reflect consideration of the type
and criticality of the action involved,
the availability and actionability of the
data, and equity concerns in the
implementation of Executive Order
11988, as amended. FEMA also has an
agency-wide initiative focused on
reducing barriers and increasing
opportunities so all people, including
those from vulnerable and underserved
communities, can get help when they
need it.171 FEMA notes any increased
costs are generally eligible for funding
under FEMA’s assistance programs
subject to cost share requirements.
As part of the implementation cost,
FEMA will publicize the FFRMS to
public and SLTT partners, identifying
what the FFRMS is and how the agency
will implement the Executive Order as
amended and part 9. These resources
will help applicants applying for FEMAfunded assistance programs. FEMA’s
regional offices will also provide
technical assistance in support of
FFRMS implementation.
As climate science data continues to
be advanced, FEMA will continue to
rely on 44 CFR 9.7, FEMA Policy 104–
008–2: Guidance on the Use of
171 See https://www.fema.gov/emergencymanagers/national-preparedness/equity (last
accessed Jan. 24, 2024).
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Available Flood Hazard Information,172
and the Revised Guidelines in
determining whether CISA and flood
hazard data is available and actionable.
Appendix H of the Revised Guidelines
and the CISA FFRMS State of the
Science Report provide an overview of
the available and actionable data for
CISA, which is the basis for these
interagency supporting tools. The
Revised Guidelines also provide an
explanation of how the FFRMS will be
updated in the future. Additionally,
where a community does have access to
CISA data and has adopted its use for
floodplain management, that data will
be used pursuant to 44 CFR 9.11(d)(6),
as long as it results in a more restrictive
standard. In this way the unique
considerations of a particular
community are also taken into account.
2. FVA
Comment: A commenter stated FEMA
should be prepared to reassess the use
of 2 and 3 feet of freeboard in the FVA
according to the latest climate science.
The commenter requested the FFRMS
should explicitly allow this type of
reassessment to take place without
rulemaking.
FEMA Response: The FVA is an
alternative approach to the CISA under
the FFRMS. FEMA cannot
independently revise the FFRMS. The
MitFLG in consultation with the FIFM–
TF will reassess the FFRMS annually,
after seeking stakeholder input, and
provide recommendations to the WRC
to update the FFRMS, including the
FVA, if warranted based on accurate
and actionable science that takes into
account changes to climate and other
changes in flood risk. The WRC shall
issue an update to the FFRMS at least
every 5 years.173
FEMA appreciates the intent behind
the comment, namely that the agency
should implement the FFRMS in a way
that allows for reassessments that
account for changes in climate science.
FEMA has ensured that its
implementation of the FFRMS will
allow for such updates. Specifically, in
this final rule, FEMA will implement
the FFRMS by adopting the flexible
framework identified in Executive Order
11988, as amended by Executive Order
13690, in its entirety, instead of
mandating a particular approach in its
regulations and will provide additional
guidance (more readily capable of
revisions and updates) that addresses
172 Available at https://www.fema.gov/sites/
default/files/2020-04/Available_Flood_Hazard_
Information_Policy_104-008-2.pdf (last accessed
Mar. 12, 2024).
173 Section 4, Executive Order 13690, 80 FR 6425
(Feb. 4, 2015).
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which approach FEMA would generally
use for different types of actions.
Consistent with Executive Order 11988,
as amended, and the Revised
Guidelines, the CISA requirements will
change as the available and actionable
data change and FEMA will similarly
update its guidance, as appropriate, to
account for such changes.
3. 0.2PFA
Comments: Commenters asked
questions about the 0.2PFA and how
FEMA would implement the approach.
A commenter expressed support for the
use of the 0.2PFA as an effective
alternative to the CISA while technology
and capabilities to implement CISA are
scaling to a nationwide level. At the
same time, the commenter
recommended that FEMA allow for the
flexibility to use the most protective and
up-to-date science in coastal regions or
where higher quality data and analytics
are available. The same commenter
wrote that FEMA should continue
educating the public regarding flood
risk from flood events that could affect
areas beyond the 0.2 percent annual
chance floodplains. The commenter
stated that during the past two decades,
many storm events of a magnitude
greater than a 0.2PFA event have
occurred, such as the 2010 Nashville
flood and the 2017 inland flood induced
by Hurricane Harvey. The commenter
stated that while reliance on the 0.2PFA
would significantly reduce flood risk in
comparison to reliance upon the 1
percent annual chance floodplain,
FEMA should not be satisfied that this
would be sufficient. The commenter
also requested FEMA include land
surface flooding. The commenter also
recommended the flood mitigation
standard for critical infrastructure (such
as subway systems, metropolitan
wastewater treatment facilities, and
others) be different and higher than
those for non-critical. Another
commenter requested FEMA account for
the area of elevation that was above or
below sea level to plan for
implementation of the 0.2PFA.
FEMA Response: FEMA’s policy
approach provides flexibility. As
explained in the FFRMS policy, FEMA
will use the CISA to determine the
floodplain where that data is available
and actionable. Where the CISA data is
not available or actionable, FEMA will
utilize either the FVA or 0.2PFA
depending on the criticality of the
action and data availability. FEMA
notes there is no requirement in the
FFRMS or the Revised Guidelines to
select the higher approach when not
using the CISA, as FFRMS is a resilience
standard. ‘‘When an agency is not using
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the Climate-informed Science Approach
in riverine flood hazard areas, the
agency may select either the Freeboard
Value Approach or the 0.2-percentannual chance elevation, as appropriate,
and is not required to use the higher of
the two.’’ 174
FEMA will continue to rely on 44 CFR
9.7, FEMA Policy 104–008–2: Guidance
on the Use of Available Flood Hazard
Information,175 and the Revised
Guidelines in determining whether
CISA and flood hazard data is available
and actionable. FEMA will use the best
available information in making the
floodplain determination under part 9,
and the best available information may
include information that is nonregulatory or FEMA preliminary flood
hazard data. To be designated as the
best available information, it must be at
least as restrictive as information
provided by effective FIRMs. Pursuant
to 44 CFR 9.11(d)(6), a more restrictive
Federal, State, or local standard will be
used and this includes the use of local
CISA data and methods that have been
adopted by a community for use in
floodplain management, as long as such
data results in a more restrictive
standard.
To clarify, FEMA is not relying on the
1 percent annual chance floodplain in
the FFRMS approaches. Rather, FEMA
is relying on the CISA, FVA, or 0.2PFA.
FEMA’s FFRMS policy clarifies the
agency will use the higher of the FVA
or 0.2PFA for critical actions when
CISA data is not available or actionable.
FEMA will continue to utilize the 1
percent annual chance floodplain under
part 9 only for those actions that are not
subject to the FFRMS and are
considered non-critical actions.
FEMA has considered and will
continue to consider flooding
characteristics such as land surface
flooding consistent with § 9.7. FEMA’s
FFRMS policy also emphasizes whether
the action is a critical action as one of
the factors to consider when conducting
the analysis as to the approach to utilize
when CISA data is not available or
actionable.
Regarding the commenter’s concerns
about elevation, the interagency tools
FEMA will use to determine the 0.2PFA,
as well as CISA and FVA, will account
for ground elevation.
Comment: One commenter wrote only
20 percent of the country had detailed
horizontal floodplain boundaries of the
0.2 percent annual chance floodplain
174 See
Revised Guidelines, pg. 57.
at https://www.fema.gov/sites/
default/files/2020-04/Available_Flood_Hazard_
Information_Policy_104-008-2.pdf (last accessed
Mar. 12, 2024).
175 Available
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and that the elevation determination
was also important given that some
flood depths could be lower in the 0.2
annual chance floodplain than in the 1
percent annual chance floodplain. A
commenter stated the lack of
comprehensive elevation information
for the 0.2PFA would cause confusion
among stakeholders and applying
FFRMS without accounting for distinct
elevation profiles undermined the
practicality and success of the policy.
Another commenter supported utilizing
the 0.2PFA and FVA when the CISA
data was not available and not
actionable. The commenter noted wave
modeling should be included when
applying the 0.2PFA and FEMA had not
regularly produced maps that
incorporate wave modeling. The
commenter requested FEMA regularly
include wave modeling in its 0.2
percent annual chance flood maps.
FEMA Response: As explained above,
FEMA’s FFRMS policy identifies data
availability as a factor in determining
the FFRMS approach to be used for a
specific action. FEMA recognizes data
availability of the 0.2 percent annual
chance floodplain, as well as technical
considerations relating to how wave
action may be incorporated, can be
challenges in implementing the 0.2PFA.
In coastal areas, the Revised Guidelines
note Federal agencies should use the
FVA as the minimum elevation when
not using the CISA if the 0.2 percent
annual chance flood information
depicted on FEMA’s regulatory products
considers storm-surge hazards but not
wave action, and wave action data
cannot be obtained from other sources.
As the commenter notes, when the
CISA is not available and the 0.2PFA is
used in coastal areas, the 0.2PFA should
consider wave action. As the Revised
Guidelines state, before using the
0.2PFA in that situation, an analysis
should be conducted of coastal flood
hazards at the site that incorporates the
local effects of wave action, scour and
erosion, wave run-up, and
overtopping.176 In some instances, the
FEMA 0.2 percent annual chance flood
elevation, which does not consider
wave action, will be lower than the
current BFE or the FVA. As noted in the
Executive Summary of this preamble,
FEMA edited the agency’s proposed
FFRMS policy to clarify that FIRMs and
Federal Insurance Studies (FIS) provide
1 percent annual chance flood
elevations including wave action in
coastal areas; however, the 0.2 percent
annual chance flood elevations
generally are stillwater elevations that
do not account for the effects of wave
176 See
action. To emphasize the importance of
this for non-critical actions in
particular, the FFRMS policy wording
has been clarified and relocated to
Section C.3.a, stating that when the
lower of the 0.2PFA or FVA is used, the
FVA flood elevation must be used in
those instances where the 0.2-percentannual-chance flood elevation does not
account for the effects of wave action.177
For critical actions, the policy approach
is to use the higher of the FVA or
0.2PFA, which would avoid relying on
0.2PFA in situations where the 0.2PFA
elevations would be lower.
4. Fourth Approach
Comment: A commenter stated the
fourth approach listed in the rule was a
‘‘hedge’’ and resulted in inexcusable
operational uncertainty to the FFRMS.
The commenter stated the public would
struggle to understand the appropriate
standard on an annual basis given this
approach. Another commenter stated
the fourth approach was a ‘‘safety net’’
and consistent with the other
commenter, stated the approach
amplified operational uncertainty
within FFRMS rather than addressing it.
FEMA Response: FEMA disagrees that
the fourth approach in the regulation
provides additional uncertainty for the
public. This approach is provided in the
Revised Guidelines, and FEMA would
provide notice to the public of any such
approach and the adoption of that
approach consistent with Executive
Order 11988, as amended.
5. Alternatives to FFRMS Approaches
Comment: One commenter suggested
that cost-benefit analysis could serve as
an alternative to using the FFRMS
approaches. The commenter stated costbenefit analysis informed by risk could
be scaled to the circumstances of
decisions and would achieve better
results than applying error-prone
arbitrary standards. The commenter
stated that benefits and costs can be
broadly conceived to include more than
values reflected in market transactions.
The commenter wrote that FEMA
applied cost-benefit analysis in a partial
way to its hazard mitigation program
only and asked how not leveraging a
cost-benefit analysis but instead
applying the FFRMS approaches would
result in net Federal resource savings.
FEMA Response: As an initial matter,
FEMA notes that establishing the
floodplain for each project on the basis
of individualized cost-benefit
assessments would potentially be
inconsistent with the commenter’s
stated preference for predictability and
Revised Guidelines, pg. 57.
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177 See
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56961
reduced uncertainty (as reflected in the
commenter’s objection to the CISA
standard). For instance, the
commenter’s proposal could require
individualized flood risk assessments
that would make it challenging for
private parties to predict the applicable
floodplain prior to engaging with
FEMA. In addition, in at least some
cases, the commenter’s proposed
approach would call for consideration
of relevant data and science in order to
understand the potential costs and
benefits of building to different levels of
resilience. Although as reflected
throughout this response and preamble,
FEMA shares the commenter’s
sensitivity to cost and preference to
limit unnecessary expenditures to the
extent possible, FEMA does not believe
that the approach suggested by the
commenter is necessarily more likely to
be predictable or administrable, or to
maximize net benefits.
While not all of FEMA’s programs are
statutorily required to be cost-effective,
FEMA has consistently leveraged costbenefit analysis and will continue to do
so along with minimum standards for
floodplain management across the
agency’s programs to provide for
Federally funded projects that are both
cost-effective and result in more
resilient communities.
In its NPRM and proposed policy,
FEMA explained how the agency
considered cost along with data
availability, criticality of the action, and
equity in establishing a flexible
framework for FFRMS implementation.
Consistent with the Revised Guidelines,
FEMA’s preferred approach is the CISA,
but the FFRMS policy explains the CISA
must be available and actionable and
where it is not, the FVA or 0.2PFA will
be utilized depending on the criticality
of the action and availability of data.
FEMA believes the benefits of
preventing property damage and
potentially saving lives justify the costs
of the rule. These benefits are a result
of the improved protection of structures
due to increased elevation and
floodproofing standards in FEMA’s
implementation of the FFRMS. This rule
will help to ensure that Federal
investments are better protected from
flood damage, and the natural values of
floodplains are preserved. If, in the
future, the commenter were to identify
a specific cost-benefit methodology that
warranted adoption via the process
outlined in the Executive Order, FEMA
could in principle pursue such an
option.
Comments: Some commenters
recommended FEMA adopt specific
building codes and design standards as
part of this rulemaking. One commenter
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stated FEMA’s rule was consistent with
ASCE Policy Statement 421. The
commenter recommended FEMA adopt
both the current 2022 edition of ASCE
7 as well as Supplement #1 and
Supplement #2 for the Flood Chapter,
and the upcoming revision to ASCE 24.
Another commenter recommended
FEMA require up-to-date editions of the
International Residential Code (IRC) and
International Building Code (IBC) to
ensure the FFRMS incorporates the
most stringent flood provisions for
Federally assisted construction in flood
zones. Another commenter also
recommended FEMA specifically adopt
a reference to the ANSI/FM Approvals
2510 standard for floodproofing/flood
mitigation products, similar to the U.S.
Department of Housing and Urban
Development (HUD)’s proposal to allow
floodproofing of non-residential areas
below the FFRMS floodplain elevation
in their NPRM.
FEMA Response: FEMA appreciates
the commenter’s concerns and notes the
agency does implement specific codes
and standards through grant program
policies and requirements.178 However,
the scope of this rule is limited to
implementation of FFRMS consistent
with Executive Order 11988, as
amended, and the Revised Guidelines;
FEMA did not propose to adopt specific
building codes and standards in the
NPRM. FEMA may, however, clarify the
use of such standards through
additional guidance.
FEMA adopted a Building Codes
Strategy 179 in March 2022 that focuses
on leveraging partnerships to promote
current hazard resistant building codes;
understanding stakeholder needs to
identify opportunities that advance
building code adoption and
enforcement; amplifying climate science
messaging to increase public demand
for building codes and standards; and
targeting building code adoption
outreach to the most vulnerable
communities to achieve a more resilient
178 For example, FEMA Recovery Interim Policy
104–009–11 Version 2.1, ‘‘Consensus-Based Codes,
Specifications and Standards for Public Assistance’’
(December 20, 2019) requires ‘‘application of the
latest nationwide consensus-based codes,
specifications and standards that incorporate
hazard resistance for PA funded projects’’ including
buildings, electric power, roads, bridges, potable
water, and wastewater. Available at https://
www.fema.gov/sites/default/files/2020-07/fema_
DRRA-1235b-public-assistance-codes-standardsinterim-policy.pdf (last accessed Jan. 24, 2024).
HMA also specifically references ASCE 24 and
ASCE 7 in the HMA Program and Policy Guide
available at https://www.fema.gov/grants/
mitigation/hazard-mitigation-assistance-guidance
(last accessed Jan. 24, 2024).
179 See ‘‘Building Codes Strategy’’ March 2022
available at https://www.fema.gov/sites/default/
files/documents/fema_building-codes-strategy.pdf
(last accessed Jan. 24, 2024).
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nation. FEMA believes the changes
made in this final rule and the FFRMS
policy will further this strategy without
mandating specific codes and standards
in the regulatory text. FEMA will
continue to review and update the
agency’s policies and guidance
regarding codes and standards to ensure
the agency is promoting use of the
standards consistent with FEMA
program requirements.
FEMA appreciates the commenter’s
request that the agency mirror HUD’s
proposal to allow floodproofing of nonresidential structures below the FFRMS
flood elevation. FEMA already allows
for floodproofing of non-residential
structures below the floodplain in 44
CFR 9.11(d)(3) and will continue to
allow floodproofing below the FFRMS
flood elevation. No changes to the
regulatory text are required to achieve
this result.
H. FEMA’s FFRMS Policy Approach
1. Overall
Comments: Commenters offered
support for the edits proposed to § 9.7
and the accompanying proposed FFRMS
policy document to implement FFRMS.
Commenters also stated specific support
for FEMA’s policy decision to prioritize
the use of CISA when determining the
FFRMS floodplain for actions subject to
the FFRMS. Commenters were also
generally supportive of FEMA’s
approach to utilize either the FVA or
0.2PFA where CISA data was not
available or not actionable.
FEMA Response: FEMA appreciates
the commenter’s agreement with the
general policy approach detailed in
FEMA’s FFRMS policy and the agency
is finalizing that policy approach with
the publication of this final rule. FEMA
notes the revisions made to part 9 apply
only to FEMA projects and not all
Federally funded projects as some
commenters suggested. All Federal
agencies will utilize the Revised
Guidelines for their own FFRMS
implementation.
Comment: One commenter wrote in
support of the revisions to § 9.7. The
commenter stated that a recent TMAC
report indicated that existing 1 percent
and 0.2 percent annual chance
floodplains were insufficient for
informing land use practices and stated
the use of CISA aligned with TMAC’s
principle to use a climate-informed map
for floodplain management, separate
from the 1 percent annual chance map
used for NFIP mandatory purchase and
other regulatory requirements.
FEMA Response: FEMA appreciates
the commenter’s support of the agency’s
preferred approach and the
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clarifications made in § 9.7 as part of
this final rule. Executive Order 11988,
as amended, and the FFRMS reinforce
the importance of avoiding adverse
impacts associated with actions in or
affecting a floodplain and minimizing
potential harm if an action must be
located in a floodplain. As amended,
Executive Order 11988 directs agencies
to use a higher vertical flood elevation
and corresponding horizontal floodplain
than that of the base flood for Federally
funded projects to address current and
future flood risk and help ensure that
projects last as long as intended. FEMA
appreciates the commenter’s reference
to the recent TMAC recommendations,
but notes TMAC recommendations are
not binding on FEMA and relate directly
to the NFIP, not necessarily to part 9
and this final rule.
Comment: One commenter was not
supportive of FFRMS, stating that a
national ‘‘one-size-fits-all’’ approach
that lacked flexibility to address specific
regional and local circumstances and
needs and a uniform strategy would not
adequately address the nuanced and
varied nature of flood dynamics. The
commenter wrote that without tailored
considerations for regional variations,
FFRMS overlooked critical factors,
risking inconsistency and inefficiency
in flood management efforts.
FEMA Response: The FFRMS is a
resilience standard with flexibility in
the approach selected to meet the
standard. FEMA’s FFRMS policy
explains how the agency selects the
FFRMS approach to use for each project
and is not a ‘‘one-size-fits-all’’ policy.
The FFRMS policy is flexible to address
data availability based on the location of
the action, criticality of the action being
taken, and equity concerns and allows
consideration of regional variations and
community concerns.
SLTTs can provide input into the
floodplain determination. Pursuant to
44 CFR 9.11(d)(6), a more restrictive
Federal, State, or local standard will be
used. This includes the use of local
CISA data and methods that have been
adopted by a community for use in
floodplain management, as long as such
data result in a more restrictive
standard. FEMA values additional input
from SLTT partners and the public
throughout the 8-step process.
Comment: Another commenter also
opposed FFRMS, stating that the
approaches based on elevation and areal
extent determined by flood elevations
across the watershed were subject to
availability heuristic bias. The
commenter stated that higher is not
always better and that FFRMS did not
consider whether the standard was
prone to error and therefore introduced
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new risks, including the risk that
FFRMS would impose more costs than
it achieves in benefits. The commenter
stated FEMA acknowledged the
proposed standard would make errors
and, in some cases, imposed costs
greater than anything it prevented or
saved. The commenter recommended
that FEMA test its new standard in
proposed use cases to determine where
the standard would make errors. The
commenter recommended that where
the probability and consequences of
errors from using the standard were
significant, the agency should resort to
detailed cost-benefit analysis. The
commenter recommended that the
FFRMS be formulated with reference to
alternatives and cost-benefit analysis,
stating the public deserves some clarity
about when FFRMS applies and when it
did not.
FEMA Response: FEMA disagrees
with the commenter that the agency is
assuming higher is universally better.
There is no requirement in the FFRMS
or the Revised Guidelines to select the
most restrictive standard, as FFRMS is
a resilience standard. The Revised
Guidelines state ‘‘[w]hen an agency is
not using the Climate-informed Science
Approach in riverine flood hazard areas,
the agency may select either the
Freeboard Value Approach or the 0.2percent-annual chance elevation, as
appropriate, and is not required to use
the higher of the two.’’ 180 In some
instances, building to a higher elevation
may lead to overbuilding and thus not
be the most cost-effective, equitable
approach particularly for non-critical
actions. FEMA believes its proposed
approach to use the CISA, and to utilize
the lower of the FVA or 0.2PFA where
the CISA is not available and actionable,
reflects appropriate sensitivity to cost
and risk.
Further, the revisions to part 9 do not
change FEMA’s long-standing
requirement as part of implementing
Executive Order 11988, as amended, to
only perform or fund actions within or
affecting floodplains if those actions are
the only practicable alternative.
Through the 8-step process, FEMA will
consider alternative locations,
alternative actions, nature-based
solutions, and the no action alternative
under the practicability analysis. If there
is no practicable alternative, FEMA will
perform or fund the action and will
minimize any adverse impacts when
doing so.
Regarding clarity on the application of
FFRMS, FEMA defines ‘‘action subject
to the FFRMS’’ as ‘‘any action where
FEMA funds are used for new
180 See
Revised Guidelines, pg. 57.
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construction, substantial improvement,
or to address substantial damage to a
structure or facility.’’ The FFRMS
applies to grants for projects funding the
new construction, substantial
improvement, or repair of substantial
damage under FEMA programs such as
IA, PA, and HMA programs, and grants
processed by FEMA’s GPD. FFRMS
applies only to Federal actions and this
rule only applies to those actions FEMA
takes using Federal funding. This
rulemaking is generally not expected to
negatively impact individuals and their
ability to pay. Where applicable, any
increased costs associated with this
rulemaking would be subject to cost
share requirements for FEMA’s
programs.
FEMA also disagrees with the
commenter that the agency
acknowledged the FFRMS would create
errors and would impose costs greater
than anything the standard would
prevent or save. FEMA believes the
benefits of preventing property damage
and potentially saving lives justify the
costs of the rule. These benefits are a
result of the improved protection of
structures and facilities due to increased
elevation and floodproofing standards
in FEMA’s implementation of the
FFRMS. This rule will improve the
resilience of Federal investments to be
better protected from flood damage and
promote preservation of the natural and
beneficial values of floodplains.
FEMA believes the regulatory impact
analysis was sufficiently detailed to
analyze the FFRMS approaches in
general, as the RIA itself was not
intended to analyze the costs and
benefits of applying the FFRMS
standards to specific use cases. FEMA
conducted an analysis to create a range
of the potential impacts. FEMA does not
know how many projects will be subject
to the FVA, 0.2PFA, or CISA
requirements over the 10-year period as
FEMA anticipates it to continually
change. Therefore, FEMA has analyzed
the impact of FVA, 0.2PFA and CISA for
each of the programs, PA, IA, and HMA
as if each were the only FFRMS
expansion option. Evaluation of the
practicability of certain FFRMS
standards in the context of specific use
cases occurs as part of the 8-step
process, and to the extent that FEMA
finds certain approaches to be
incompatible with practicable
implementation in certain cases, FEMA
may issue further guidance on the topic.
In general, however, commenters did
not identify categories of actions for
which application the FFRMS
approaches appears likely to be
particularly problematic.
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While FEMA could not quantify the
costs and benefits of several aspects of
this rule, FEMA was able to quantify the
number of structures and facilities that
would be impacted by the rule. FEMA
was transparent about its inability to
quantify the costs and benefits of several
aspects of the rule. FEMA provided a
literature review of relevant benefits
that could be realized from flood
mitigation, an analysis of benefits
quantified for the rule, and a qualitative
description of additional benefits that
could be realized from the rule. FEMA
conducted a quantitative cost-benefit
analysis based on the data available.
2. Application of the FFRMS
Approaches for Critical and Non-Critical
Actions
Comments: Commenters were
generally supportive of FEMA’s policy
approach to utilize the higher of the
FVA or 0.2PFA for critical actions
where CISA data was not available and/
or actionable. Some of these
commenters, however, expressed
concerns with utilizing the lower of the
FVA or 0.2PFA for non-critical actions
where CISA data was not available and
not actionable. Several of these
commenters inaccurately stated policy
positions on the FFRMS approaches
selected by other Federal agencies for
non-critical actions.
Commenters requested that FEMA
adopt the higher of the FVA or 0.2PFA
for non-critical actions where CISA data
was not available and not actionable.
Commenters stated that FEMA’s policy
decision to utilize the lower standard
would undermine the urgent need to
design development proposals to a more
resilient standard and minimize overall
impacts to the floodplain. In response to
FEMA’s statements in the NPRM
regarding concerns with overbuilding
and inequitable outcomes that may not
be cost-effective, a commenter noted
that FEMA has consistently advocated
for states and localities to embrace
stricter standards such as updated
building codes that can have similar
cost implications. Commenters also
wrote that upfront investments in
resilient development produced
significant cost savings to communities
in the long run and stated that the cost
of construction was not the only
consideration for costs, particularly for
housing. These commenters requested
FEMA consider the higher standard for
non-critical actions, stating that the
long-term benefits would outweigh the
costs.
FEMA Response: As explained above,
there is no requirement in the FFRMS
or the Revised Guidelines to select the
most restrictive standard, as FFRMS is
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a resilience standard. The Revised
Guidelines state ‘‘[w]hen an agency is
not using the Climate-informed Science
Approach in riverine flood hazard areas,
the agency may select either the
Freeboard Value Approach or the 0.2percent-annual chance elevation, as
appropriate, and is not required to use
the higher of the two.’’ 181 While the
approach the commenters suggested
would ensure that applicants were
building all actions to the most
protective level where CISA data is not
available, this approach may lead to
overbuilding and thus not be the most
cost-effective, equitable approach
particularly for non-critical actions.
FEMA believes the agency’s approach is
sufficiently protective of all actions and
would be less expensive and complex to
administer and implement than the
commenters’ approach.
FEMA did consider the long-term
costs and benefits of the rulemaking and
policy and does not agree with the
commenters that FEMA’s policy
approach would result in inequities.
Rather, FEMA believes the policy
approach is appropriate as it will help
ensure communities can rebound
quickly and effectively from a disaster.
Comments: Other commenters
requested FEMA require the use of the
more protective standard for non-critical
actions to better align with HUD’s
proposed rule to implement the FFRMS.
Several of those commenters stated that
aligning with HUD’s approach would
reduce conflicts and delays. One
commenter stated that FEMA’s
approach to use a lower elevation for
non-critical projects facilitated a
beneficial benefit/cost ratio. That
commenter stated the higher standard
should not be overly burdensome and
consistent with another commenter
noted the cost of construction was not
the only consideration for costs,
particularly for housing.
FEMA Response: As explained above,
there is no requirement in the FFRMS
or the Revised Guidelines to select the
most restrictive standard, as FFRMS is
a resilience standard. While the
approach the commenter suggested
would ensure applicants were building
all actions to the most protective level
where CISA data is not available, this
approach may lead to overbuilding and
thus not be the most cost-effective,
equitable approach, particularly for noncritical actions. FEMA believes the
agency’s approach is sufficiently
protective of all actions and would be
less expensive and complex to
administer and implement than the
commenter’s approach.
181 See
Revised Guidelines, pg. 57.
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While HUD’s rule would require all
proposed actions that require an
Environmental Impact Statement (EIS)
under NEPA to define the FFRMS
floodplain using CISA, FEMA does not
believe it is appropriate to require CISA
in every instance where an EIS is
required. FEMA cannot utilize CISA if
CISA data is not available and
actionable even if an action requires an
EIS. Where CISA data is both available
and actionable, FEMA will require
CISA, including for those proposed
actions that require an EIS.
HUD proposed to use the CISA to
determine the FFRMS floodplain where
the data is available and actionable. For
non-critical actions where CISA is
unavailable, HUD will use the 0.2PFA.
Where the 0.2PFA is also unavailable
for non-critical actions, HUD will use
the FVA. For critical actions where
CISA is unavailable, HUD will use
either the 0.2PFA or the FVA to
determine the FFRMS floodplain,
whichever results in the larger
floodplain and higher elevation. The
only significant difference between
HUD’s policy approach and FEMA’s is
that HUD will first use the 0.2PFA for
non-critical actions where it is available,
but the CISA is not, and FEMA will use
the lower of the 0.2PFA and the FVA for
non-critical actions where CISA is not
available.
FEMA considered requiring the use of
the 0.2PFA when CISA is not available
for non-critical actions rather than the
lower of the 0.2PFA or FVA. While
application of the 0.2PFA may provide
a more consistent reduction of flood risk
as it is probability based, the
relationship to the FVA varies
depending on topography (i.e., in some
instances the 0.2PFA may result in a
lower flood elevation than the FVA).
Application of only the 0.2PFA without
a comparison to the FVA may result in
building to a higher resilience standard
than is necessary. There could also be
equity concerns related to
underbuilding or overbuilding to this
standard, as communities seek to
rebound quickly and effectively from a
disaster. Data availability of the 0.2
percent annual chance floodplain can
also be a challenge in implementing the
0.2PFA, as well as technical
considerations relating to how wave
action may be incorporated. In coastal
areas, the Revised Guidelines note
Federal agencies should use the FVA as
the minimum elevation when not using
the CISA if the 0.2 percent annual
chance flood information depicted on
FEMA’s regulatory products considers
storm-surge hazards but not wave action
and wave action data cannot be
obtained from other sources. Only some
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of those coastal areas have included
wave action in the computation of the
0.2 percent annual chance floodplain.
FEMA’s FFRMS policy provides
details on how FEMA will coordinate
with other agencies when implementing
actions in the same area as another
Federal agency. See Section H, page 9.
FEMA’s interagency consultative role in
the broader implementation of the
FFRMS across the Federal government,
through the agency’s participation in the
Interagency Working Groups and the
FIFM–TF helps ensure consistent and
effective implementation.
FEMA agrees with the commenter that
equity is an important consideration
and FEMA incorporated equity into the
agency’s policy approach as explained
above. Equity was a primary
consideration for FEMA’s policy
approach, not a desire to achieve a
better benefit-cost ratio for non-critical
actions as the commenter suggests.
FEMA did consider the long-term costs
and benefits of the rulemaking and
policy and does not agree with the
commenters that the policy approach
would result in inequities. Rather,
FEMA believes the policy approach is
appropriate as it will help ensure
communities seeking to rebound
quickly and effectively from a disaster
may do so.
Comment: One commenter also stated
using the less restrictive standard could
result in greater impacts on floodplains,
ESA-listed species, Tribal treaty rights,
and realized costs to vulnerable
communities. The commenter stated
using the higher standard between FVA
or 0.2PFA when CISA data was not
available and not actionable would not
only prevent impacts on floodplains but
would also avoid a similar situation that
required expensive infrastructure
upgrades and government liability after
poorly located initial development
within floodplains.
FEMA Response: As explained above,
there is no requirement in the FFRMS
or the Revised Guidelines to select the
most restrictive standard, as FFRMS is
a resilience standard. While the
approach the commenter suggested
would ensure applicants were building
all actions to the most protective level
where CISA data is not available, this
approach may lead to overbuilding and
thus not be the most cost-effective,
equitable approach particularly for noncritical actions. FEMA believes the
agency’s approach is sufficiently
protective of all actions and would be
less expensive and complex to
administer and implement than the
commenter’s approach.
A more restrictive application of the
FVA or 0.2PFA would not necessarily
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determine whether an action will
impact a protected species or critical
habitat or impact Tribal treaty rights. In
step 4 of the 8-step process, FEMA
determines impacts to the floodplain
which include changes to the hydraulics
and hydrology of the floodplain which
informs on potential impacts to
protected species and their critical
habitats. FEMA will also perform
Section 7 consultation under the
Endangered Species Act where
appropriate.
3. Alternative Policy Approaches
Comments: Two commenters
provided feedback on FEMA’s specific
request for comment on requiring the
highest elevation for all actions
regardless of criticality. One commenter
noted FEMA’s policy approach was
flexible and acknowledged the need to
be flexible and design an approach that
would not unduly burden communities.
The commenter recommended that
FEMA continue to evaluate these
approaches and consider revising and
strengthening the standards if the
standards become insufficiently
protective. The other commenter stated
that completing the required floodplain
analysis for any one of the approaches
would be challenging on its own and to
require the analysis and consideration
of all three would be costly and might
not yield results materially different
from the CISA. The commenter stated
that because CISA would result in a
determination of the appropriate level of
resilience to design minimization
measures, it would be unnecessary to
require the use of the highest standard
for all actions. The commenter stated
that such an approach would be costly
and, in some instances, would result in
projects being built to higher resilience
levels than required. This commenter
supported FEMA’s policy approach for
critical actions as separate and apart
from other actions, stating by separating
critical actions from others, FEMA
would be able to properly balance
different levels of protection with
minimization and mitigation measures
and cost considerations.
FEMA Response: FEMA appreciates
the commenters’ consideration of the
alternatives and understanding of the
need for a flexible approach balancing
cost and equity considerations. FEMA
agrees with the commenter that the use
of the highest standard for all actions is
not always appropriate and the FFRMS
policy reflects the decision to use the
lower standard for non-critical actions.
FEMA intends to continue to evaluate
the policy approach as FFRMS is
implemented and will consider future
revisions as appropriate. While FEMA
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understands the commenter’s concern
that completing the analysis for all of
the approaches for every action could be
an administrative burden on the agency,
the agency does not believe that
completing the analysis for any one of
the approaches is on its own too
challenging. As explained above, FEMA
will use the FFRMS Job Aid to
determine the FFRMS floodplain for
actions, and that tool provides the
agency and stakeholders with a
methodology and process for
completing the analysis.
Comment: Two commenters wrote
that FEMA artificially constrained the
agency’s consideration of alternatives to
just the three disclosed regulatory
approaches in the proposal and did not
consider no regulatory action as an
alternative. One of the commenters
added that FEMA did not assess how
private and non-Federal interests would
adapt to flooding without regulation and
the no regulation alternative likely
understated flood adaptation, which
resulted in the cost-benefit analysis
overstating the benefits of the three
regulatory alternatives. The commenter
also wrote the true value of cost-benefit
analysis is nearly always realized when
alternatives are identified that achieve
substantial benefits and at much less
cost than much higher levels of
regulation. The commenter stated that
FEMA could have analyzed other
alternatives, such as strategic choices of
use-case subsets for application of the
various FEMA standards rather than all
use-cases being subject to CISA. The
commenter further stated that the FVA
or 0.2PFA entail much lower analysis
costs and are probably better suited to
decisions where the costs of the
structures or costs of adaptation were
lower. The commenter stated avoiding
the CISA in those situations might result
in substantial cost savings.
FEMA Response: FEMA’s policy
approach detailed in the NPRM
preamble explains how the agency
balanced consideration of costs with
data availability, criticality of the action,
and equity in establishing a flexible
framework for FFRMS implementation.
Consistent with the Revised Guidelines,
FEMA’s preferred approach is the CISA,
but the FFRMS policy explains the CISA
must be available and actionable and
where it is not, the FVA or 0.2PFA will
be utilized depending on the criticality
of the action and availability of data.
The CISA is FEMA’s preferred
approach, as FEMA believes it has the
potential to be the best and most wellinformed approach to building
resilience in an equitable manner and
ensuring a reduction in disaster-related
suffering. CISA is designed to meet
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current and future estimates of flood
risks unique to the location and thus
provide the best overall resilience, cost
effectiveness, and equity. FEMA
understands the availability and
actionability of data are key factors in
completing the RIA in a consistent,
equitable manner and believes data
availability and actionability will
continue to advance for the CISA. In
response to the commenter’s concerns
that FEMA did not assess how private
and non-Federal interests would adapt
to flooding without regulation, FEMA
notes that this regulation would not
regulate purely privately funded activity
in the floodplain. To the extent that
private incentives exist to plan for
increased flood risk, those incentives
are substantially diluted by the use of
FEMA assistance to support projects.
FEMA thus did not understate private
incentives to plan for flood risk and did
not overstate the benefits of the
regulatory alternatives.
FEMA’s policy approach includes
consideration of the alternatives as part
of the framework explained above.
FEMA intends to continue to evaluate
the policy approach as FFRMS is
implemented and will consider future
revisions as appropriate. Additionally,
FEMA’s RIA does analyze all three
approaches, as well as the no action
alternative the commenter references.
Under the No Action alternative,
although non-Federal jurisdictions or
private entities may continue to adapt to
the future risk of flooding over time, the
current Federal standards would
remain. To the extent that private
incentives exist to plan for increased
flood risk, those incentives are
substantially diluted by the use of
FEMA assistance to support projects.
Accordingly, such adaptation is
unlikely to occur as quickly or as fully
as this rule, leaving Federal investments
at a greater risk of flooding than under
the final rule. Because of the greater risk
to structures and facilities, there is also
a greater risk to life. In addition, the
natural value and function of the
floodplains would be at a greater risk of
loss under the No Action alternative.
However, the No Action alternative
would initially cost incrementally less
than the FFRMS approach and would
result in less administrative complexity
as compared to implementing the
FFRMS. Overall, based on the
evaluation, the FFRMS was selected
over the No Action alternative for the
benefits that it provides to Federal
investments and those who use them.
In response to the commenter’s
suggestion on how FEMA should have
analyzed other alternatives, such as
strategic choices of use-case subsets for
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application of the various FEMA
standards rather than all-use cases being
subject to CISA, FEMA did complete an
analysis of all three approaches. FEMA
analyzed the impact of the FVA,
0.2PFA, and CISA for each of the
programs (PA, IA, and HMA) as if each
approach were the only FFRMS
expansion option to create a range (see
sections 7.4, 7.5, and 7.6 in the RIA). In
reality, it is likely that with FFRMS,
there will be a mix, with some projects
falling under CISA, FVA, or 0.2PFA.
Therefore, the actual cost will fall
somewhere within the range. FEMA
selected the CISA as the primary
approach, as it is the preferred option.
CISA is designed to meet current and
future estimates of flood risks unique to
the location and thus provide the best
overall resilience, cost effectiveness,
and equity. As noted above, FEMA
intends to continue to evaluate the
policy approach as FFRMS is
implemented and will consider future
revisions as appropriate. Such revisions
could in principle include defaulting to
the FVA or 0.2PFA for smaller
investments, although FEMA believes
that the administrative costs associated
with implementing the CISA are likely
to decline over time.
Further, FEMA did consider the longterm costs and benefits of the
rulemaking and policy. Rather, FEMA
believes the policy approach is
appropriate, as it will help ensure
communities can rebound quickly and
effectively from a disaster.
4. Comments on FEMA’s FFRMS Policy
Comment: A commenter requested
FEMA revise the proposed principle B
in the FFRMS policy (‘‘Avoid, to the
extent possible, the long- and short-term
adverse impacts associated with
occupancy and modification of
floodplains and avoid direct or indirect
support of floodplain development
wherever there is a practicable
alternative’’) to include additional
language for FEMA to restore and
preserve the natural and beneficial
functions and values of wetlands and
floodplains. Another commenter
requested FEMA add a principle to the
FFRMS policy and final rule specific to
the restoration and preservation of the
natural and beneficial functions and
values of floodplains, and use of natural
systems, ecosystem processes, and
nature-based approaches.
FEMA Response: FEMA believes the
commenters’ requested revisions are
unnecessary. The principles laid out in
the FFRMS policy are an abbreviated
version of FEMA’s policy statements
found in § 9.2. As stated in new § 9.2(d),
FEMA shall ‘‘[r]estore and preserve the
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natural and beneficial values served by
floodplains’’ and ‘‘[p]reserve and
enhance the natural values of
wetlands.’’ FEMA’s longstanding
requirements in 44 CFR 9.11(e) outline
the agency’s requirements to restore and
preserve the natural and beneficial
values served by floodplains and
wetlands. These current requirements
meet the commenters’ concerns and
remain unchanged in this rulemaking
process.
Comment: A commenter requested
other specific edits to the policy
document, including adding ‘‘dry’’
before floodproofing throughout the
document and replacing ‘‘minimization
standards’’ with ‘‘residential flood
resistant design and construction
requirements.’’ The commenter also
suggested FEMA add emphasis that
nature-based solutions complement the
elevation requirements versus being
alternative actions and implementing a
nature-based solution would not exempt
an applicant from the elevation
requirements.
FEMA Response: FEMA believes the
current language in the FFRMS policy is
sufficiently clear. FEMA believes adding
‘‘dry’’ before floodproofing is not
necessary as floodproofing is described
in detail in new § 9.11(d)(3)(ii) and
section G.1.c of the FFRMS policy.
Further, FEMA’s policy references the
use of the agency’s additional resources
including FEMA’s NFIP Technical
Bulletins that address floodproofing.182
Using the term ‘‘minimization
requirements’’ is consistent with the
minimization provisions and
minimization standards in § 9.11. The
term ‘‘flood risk minimization
measures’’ is preferred by FEMA to
avoid confusion with ‘‘hazard
mitigation’’ actions funded by FEMA.
FEMA believes that natural features
and nature-based solutions should be
considered as project alternatives and
used where possible. Where they are not
practicable as an alternative on their
own, natural features and nature-based
solutions may be incorporated into
actions as minimization measures. The
FFRMS policy clarifies the FFRMS is a
resilience standard and where elevation
may not be feasible or appropriate, the
182 See FFRMS Policy, pg. 8, Section G.1.d
‘‘FEMA guidance provides technical information on
elevation methods for new construction and
retrofitting existing structures with various types of
foundations. Guidance is available in NFIP
Technical Bulletins (1–11), FEMA P–758:
Substantial Improvement/Substantial Damage Desk
Reference, FEMA P–936: Floodproofing NonResidential Buildings, FEMA P–348: Protecting
Building Utility Systems from Flood Damage,
FEMA P–467–2: Floodplain Management Bulletin
on Historic Structures, among other FEMA
publications.’’
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FFRMS floodplain establishes the level
to which a structure or facility must be
resilient. Resilience measures include
using structural or nonstructural
methods to reduce or prevent damage;
elevating a structure; or, where
appropriate, designing it to adapt to,
withstand and rapidly recover from a
flood event.
Comment: The same commenter
requested several clarifications. The
commenter requested FEMA clarify the
requirements provided in the policy
were minimum requirements not
maximums and that applicants could
exceed those requirements. The
commenter requested FEMA clarify the
policy’s requirements apply regardless
of whether or not substantial
improvement or substantial damage is
triggered and also clarify whether a
structure within an FFRMS floodplain
must comply with the policy’s
requirements.
The commenter also requested
clarifications on—
• The application of FFRMS to
FEMA’s benefit-cost analysis tool used
by some FEMA programs;
• whether the FFRMS policy limited
where certain projects could be done,
citing an example of mitigation
reconstruction projects being prohibited
in V Zone; and
• what constitutes a critical action
and specifically whether or not certain
specific actions would be considered
critical, such as construction of new safe
room and stand-alone generator projects
if they are supporting a critical facility.
FEMA Response: The commenter is
correct that FFRMS is a minimum
requirement under part 9. In section C.4
of the policy, FEMA clarifies pursuant
to 44 CFR 9.11(d)(6), a more restrictive
Federal, State, or local standard will be
used. Actions may follow a higher
standard so long as the action complies
with FEMA’s program requirements.
In section A.2 of FEMA’s FFRMS
policy, the agency clarifies applicability
of the policy to specific actions,
including actions involving substantial
improvement and substantial damage.
FEMA does not believe the policy
requires additional revision given the
language in section A.2 regarding
applicability. Section C of the policy
explains how FEMA determines the
FFRMS floodplain. Specific actions
listed in section A.2 that are within the
FFRMS floodplain are subject to the
requirements of the policy.
FEMA appreciates the commenter’s
interest in the application of the BenefitCost Analysis (BCA) tool to the FFRMS
process for FEMA programs. FFRMS
does consider current and future flood
risks. Where CISA is available and
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actionable, sea level rise is specifically
incorporated into the determination of
the FFRMS flood elevation. FEMA’s
FFRMS policy will generally not change
BCA requirements for FEMA programs.
For FEMA’s HMA program, additional
elevation above the BFE incorporated
into the design of the project and
attributed to current and future flood
risk such as sea level rise would be
allowable in the BCA. Currently, precalculated benefits that streamline the
cost-effectiveness determination for
structure elevation projects are limited
to structures where some part of the
structure is within the SFHA. For an
elevation project where the entire
structure footprint is outside the SFHA,
a BCA will be required to show costeffectiveness. For FEMA’s PA program,
cost-effectiveness requirements apply
only to Hazard Mitigation measures on
projects to restore disaster damaged
structures and facilities. FFRMS
elevation requirements are mandated by
law and therefore are eligible for
financial assistance without additional
cost-effectiveness analysis. FEMA notes
any increased costs are generally
eligible for funding under FEMA’s
assistance programs subject to cost share
requirements.
The requirements of § 9.11(d)(1) still
apply and remain unchanged in this
final rule. The commenter references V
Zone mitigation reconstruction projects.
For V Zone actions that are new
construction, FEMA is prohibited from
funding such actions unless the action
is functionally dependent or facilitates
open space use. The HMA Program and
Policy Guide also states HMA mitigation
reconstruction projects are prohibited in
the V Zone and in floodways 183 and
this final rule and FFRMS policy will
not change that requirement. HMA
mitigation reconstruction actions that
are within the FFRMS floodplain must
either be relocated or elevated to the
FFRMS requirements.
Regarding the commenter’s request for
clarification on whether or not specific
actions were considered critical and
subject to FFRMS, FEMA cannot
provide a full adjudication of whether
an action is a critical action without
context. FEMA makes the determination
of whether an action is a critical action
as part of the 8-step process on a caseby-case basis with input from the
applicant. FEMA’s definition of ‘‘critical
action’’ is consistent with Executive
Order 11988, as amended, through the
Implementing Guidelines and further
183 Hazard Mitigation Assistance Program and
Policy Guide, pg. 85 available at https://
www.fema.gov/grants/mitigation/guide (last
accessed Mar. 20, 2024).
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clarified in the Revised Guidelines. The
Revised Guidelines provide further
details on what constitutes a critical
action. FEMA will leverage the
information in the Revised Guidelines
when providing additional guidance to
stakeholders.
As explained throughout this final
rule, FEMA will publish additional
resources for the public and SLTT
partners identifying what the FFRMS is,
and how the agency will implement the
Executive Orders to help applicants of
FEMA-funded assistance programs.
FEMA’s regional offices will also
provide technical assistance in support
of FFRMS implementation.
Comment: The same commenter also
had several other recommendations for
FEMA’s FFRMS policy. The commenter
recommended FEMA add an emphasis
on specific codes and standards that
might be applicable to specific FEMA
programs, limit the dry floodproofing
design to 3 feet for any new
construction as recommended by NFIP
Technical Bulletin 3, and cap elevation
costs at the current NFIP ceiling for
building coverage or the current
replacement value. The commenter also
suggested FEMA add information
related to relocation regarding naturebased solutions, stating that instead of
elevating or reconstructing in place the
preference should be to relocate an
action.
FEMA Response: The FFRMS policy
provides information on FEMA’s
Building Codes Strategy and refers to
specific codes and standards the agency
leverages through specific program
policies. FEMA does not believe
additional emphasis on specific codes
and standards is required in the FFRMS
policy, as these are detailed in each
specific program’s policies. FEMA will
distribute additional resources for the
public and SLTT partners identifying
what the FFRMS is, and how the agency
will implement the Executive Orders to
assist applicants of FEMA-funded
assistance programs. FEMA will also
provide technical assistance through the
agency’s regional offices in support of
FFRMS implementation.
FEMA’s FFRMS policy states
‘‘[e]levation and floodproofing
requirements must be consistent with
NFIP criteria or any more restrictive
local standard.’’ 184 Rather than direct
quotation of a specific requirement for
floodproofing design as the commenter
requested, section G.1.d of the FFRMS
policy addresses the use of other FEMA
publications, including NFIP Technical
Bulletins to assist readers.
184 FFRMS
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FEMA believes the commenter’s
suggested funding limitations to cap
elevation costs are outside the scope of
this rulemaking. Applicants seeking
FEMA program funding will be required
to comply with that program’s eligibility
requirements, which may consider cost
effectiveness of the proposed action.
Regarding the commenter’s request to
add information regarding relocation,
FEMA notes this policy does not change
the current requirement of step 3 of the
8-step process: ‘‘If a practicable
alternative exists outside of the
floodplain or wetland FEMA must
locate the action at the alternative site.’’
Comment: Another commenter asked
if Approach 2 was only for critical
actions.
FEMA Response: Approach 2 (the
FVA) may be used for both critical and
non-critical actions where CISA is not
available and actionable. FEMA’s
FFRMS policy requires FEMA to
determine the FFRMS floodplain
according to the CISA for all locations
where the best-available, actionable
hydrologic and hydraulic data methods
that integrate current and future changes
in flooding based on climate science
exist. When CISA is not available for a
critical action, the FFRMS policy
requires FEMA to determine the FFRMS
floodplain as the area that would be
inundated by the higher of the 0.2
percent annual chance flood and 3 feet
of freeboard above the BFE for that
location (the Freeboard Value Approach
or FVA). When CISA is not available for
a non-critical action, the FFRMS policy
requires FEMA to determine the FFRMS
floodplain as the area that would be
inundated by the lower of the 0.2
percent annual chance flood and 2 feet
of freeboard above the BFE for that
location (the FVA). In coastal areas
where CISA is unavailable, the FFRMS
policy requires the FVA be used if the
available 0.2 percent annual chance
flood elevation does not account for
wave action.
Comment: One commenter stated
several links in the policy document did
not appear to be active.
FEMA Response: FEMA appreciates
the commenter’s review of the policy
document links and has confirmed the
links are updated and active in the
attached FFRMS policy.
I. The FFRMS and Floodplain/Wetland
Determination Data
1. Data Availability
Comments: Four commenters
discussed the availability of the CISA
data to implement the FFRMS and some
of the commenters requested maps or
other resources depicting the FFRMS
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floodplain. A commenter stated there
were no consistently accurate resources
depicting the floodplain, floodway, the
100-year floodplain, the 500-year
floodplain, or the FFRMS floodplain.
The commenter stated that the
floodplain determination triggered
whether a proposed action was required
to complete the 8-step decision-making
process and the lack of FFRMS
floodplain maps would create difficulty
for stakeholders seeking Federal funding
from FEMA for projects. The commenter
stated that FEMA’s work with other
agencies to develop FFRMS tools and
resources would help situations
involving existing development but
would not deter new development
because the FFRMS floodplain
determination would come only after
the initial investments were made. The
commenter added that FEMA’s
regulatory maps for the NFIP help
stakeholders determine whether a
property is located in a regulated
floodplain within a short period of time
and with a high degree of certainty and
that the FFRMS establishes a moving,
undocumented, and unmapped target
that would be used haphazardly to
determine the floodplain status of any
given property.
Further, the commenter stated FEMA
had not provided enough information
on how FEMA would implement the
preferred CISA approach and had not
defined when data might be considered
to be ‘‘available’’ or ‘‘actionable.’’ The
commenter stated the regulatory text
lacked information on the CISA data
and FEMA’s request for comment on
how the CISA could be implemented
using a publicly accessible,
standardized, predictable, flexible, and
cost-effective methodology indicated the
agency was uncertain of how to apply
the CISA to any given project. The
commenter stated the lack of maps and
other resources depicting the FFRMS
floodplain made the floodplain
determination susceptible to confusion,
error, and potential abuse. The
commenter stated FEMA rejected the
use of the 0.2PFA based on data
availability, costs, and certainty for
stakeholders and stated concern with
FEMA moving forward with the CISA,
stating that approach was supported by
even less data.
Conversely, a second commenter
stated the necessary data and modeling
capabilities underpinning CISA have
continued to expand in recent years,
making CISA an increasingly practicable
methodology for more accurately
determining the extent of the FFRMS
floodplain. The commenter wrote that
FEMA should emphasize developing
and deploying the necessary data to
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support the use of the CISA more
broadly and specifically consider and
address how regional data limitations
could result in inequitable outcomes if
the CISA is routinely unavailable in low
income, rural, Tribal, or otherwise
underserved communities.
Two other commenters requested that
FEMA provide mapping depicting the
FFRMS floodplain. One commenter
specifically requested mapping
reflecting the CISA. One of the
commenters noted the importance of
mapping to identify all 3.5 million miles
of floodplains associated with streams,
rivers, and coastlines. This commenter
recommended FEMA create maps with
as much coverage as possible by
considering incorporating data from
areas with Base Level Engineering (BLE)
in additional areas with detailed flood
studies, when possible. The commenter
stated this was the best way to ensure
consistent, accurate CISA use.
FEMA Response: FEMA disagrees
with the commenter that there are not
sufficient resources depicting the
floodplain, floodway, the 1 percent
annual chance floodplain, or the 0.2
percent annual chance floodplain for all
regions of the country. The commenter
acknowledges further in their own
comment that such resources currently
exist for the 1 percent annual chance
floodplain when stating the wide
availability and certainty of FEMA’s
FIRMs. While regulatory mapping
products may not exist depicting all of
the areas referenced by the commenter,
floodplain determinations under part 9
are not solely predicated on existing
FIRMs. Rather, FEMA will use best
available information, which may
include information that is nonregulatory or FEMA preliminary flood
hazard data. To be designated as the
best available information, the
information must be at least as
restrictive as information provided by
effective FIRMs per FEMA’s best
available information policy.185 Given
this policy, the agency will be
continuously improving the data
associated with the floodplain
determination. FEMA’s regulatory
mapping products are a starting point
for the floodplain determination under
part 9 and any other flood information
used should be at least as restrictive as
those regulatory products.
Further, while there are no regulatory
mapping products depicting the FFRMS
floodplain, FEMA believes the
information provided in the public
docket with this rulemaking is sufficient
to establish the FFRMS floodplain.
Specifically, the FFRMS CISA State of
the Science Report and the FFRMS Job
Aid are resources to determine the
FFRMS floodplain. Using the FFRMS
Job Aid, FEMA can determine the
FFRMS floodplain relevant to a
particular location within
approximately 23 minutes.
While FEMA appreciates that the
commenter seeks to make the floodplain
determinations, the agency has
historically made and will continue to
make floodplain determinations under
part 9 by partnering with applicants in
the 8-step decision-making process.
FEMA will make the floodplain
determination leveraging the FFRMS Job
Aid published on the agency’s website
and in the public docket of this
rulemaking. The FFRMS Job Aid is a
resource for FEMA and applicants that
details the methodology and process by
which the FFRMS floodplain can be
determined for the CISA, FVA, and
0.2PFA. FEMA further notes that the
commenter’s concerns regarding the
floodplain determination are only a part
of the analysis at Step 1 of the 8-step
process. The determination in Step 1 is
not just whether or not an action is
located within a floodplain or wetland
but is also whether the action would
impact the floodplain or wetland.
FEMA will continue to rely on 44 CFR
9.7, FEMA Policy 104–008–2: Guidance
on the Use of Available Flood Hazard
Information,186 and the Revised
Guidelines in determining whether
CISA and flood hazard data is available
and actionable. The FFRMS CISA State
of the Science Report is based on the
Revised Guidelines and further refines
the initial framework from Appendix H
to define two specific workflows for
applying CISA. The FFRMS CISA State
of the Science Report identifies the
latest sea level rise projections from the
National Climate Assessment as
available and actionable data for
CISA.187 FEMA understands the
commenter’s concerns in seeking a
simplified resource that depicts the
FFRMS floodplain and is coordinating
across the federal government to
develop additional tools beyond the
FFRMS Job Aid to assist agencies and
stakeholders in determining the
appropriate vertical flood elevation and
corresponding horizontal FFRMS
floodplain. FEMA will continue to
185 See FEMA Policy 104–008–2: Guidance on the
Use of Available Flood Hazard Information,
available at https://www.fema.gov/sites/default/
files/2020-04/Available_Flood_Hazard_
Information_Policy_104-008-2.pdf (last accessed
Mar. 20, 2024).
186 Available at https://www.fema.gov/sites/
default/files/2020-04/Available_Flood_Hazard_
Information_Policy_104-008-2.pdf (last accessed
Jan. 24, 2024).
187 FFRMS CISA State of the Science Report, pgs.
22–23.
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collaborate across the Federal
government to develop tools to facilitate
the implementation of CISA and the
FFRMS. The IWG recently released a
beta version of the Federal Flood
Standard Support Tool (FFSST), a
novel, interactive, map-based tool that
incorporates new data to help users
identify if a Federally funded project is
in the FFRMS floodplain, for
comment.188 However, FEMA will
initially rely on the FFRMS Job Aid
methodology to determine the FFRMS
floodplain.
The commenter incorrectly
characterizes FEMA’s request for
comment as an indication that the
agency is unable to apply the CISA. As
explained above and throughout this
final rule, FEMA is leveraging the
resources provided in the public docket
of this rulemaking to implement the
FFRMS. As part of the NPRM, FEMA
sought public comment to gauge the
public’s understanding of CISA and
implementation of the FFRMS using the
CISA, including locally available CISA
data and methods. FEMA is
collaborating across the Federal
government to develop resources to
further assist with FFRMS
implementation beyond the FFRMS Job
Aid provided in the rulemaking docket,
the public comments requested will
help the agency through work with the
IWG to enhance the Job Aid and other
interagency resources. Additionally,
FEMA sought public comment to engage
more dialogue on data availability and
actionability beyond Federal
interagency resources for FFRMS
implementation.
FEMA further disagrees with the first
commenter that the CISA is supported
by even less data than the 0.2PFA.
FEMA’s policy addresses concerns
regarding the availability and
actionability of CISA data by offering a
flexible approach to implement either
the FVA or 0.2PFA where CISA data is
not available and/or actionable. Further,
as the policy explains, the use of both
CISA and 0.2PFA are subject to data
availability. While CISA is preferred,
where CISA data is not available and/or
actionable, the agency will rely on the
alternative approaches as detailed in the
FFRMS policy.
FEMA agrees with the second
commenter that since the introduction
of the CISA in 2015, additional data has
become available to better inform the
CISA.189 FEMA believes data
188 89
FR 25674 (Apr. 11, 2024).
‘‘Federal Flood Risk Management
Standard Climate-Informed Science Approach
(CISA) State of the Science Report,’’ available at
https://www.whitehouse.gov/wp-content/uploads/
189 See
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availability and actionability will
continue to advance for the CISA in the
future. Specifically, FEMA expects more
data will be developed supporting
broader-based application of the CISA
as agencies implement the FFRMS, and
this data will be considered and
incorporated into future updates of the
FFRMS and FEMA’s implementation
thereof. FEMA’s policy approach is to
use the CISA where available and
actionable, recognizing that the data is
still not available and not actionable in
every location. FEMA also recognized
equity concerns in the policy approach,
specifically considering over- and
under-building concerns for locations
where the CISA may be unavailable as
explained in the NPRM preamble. The
Revised Guidelines recognize the
importance of consideration of impacts
to vulnerable populations, including
those at risk to impacts of flooding due
to their location or because they are
overburdened, lack resources, or have
less access to resources.190 Consistent
with these concerns, FEMA’s FFRMS
policy would require the lower of the
FVA floodplain or the 0.2PFA
floodplain for non-critical actions.
FEMA believes the lower approach
would help reduce the burden on
communities by addressing concerns
related to overbuilding, particularly in
underserved communities seeking to
rebound quickly and effectively from a
disaster. Selecting the lower approach
for non-critical actions will still result
in a higher level of resilience than the
current requirements under part 9,
while also taking equity and costeffectiveness considerations into
account.
FEMA appreciates the concerns of the
remaining commenters requesting maps
that depict the FFRMS floodplain and
the importance of providing maps with
as much coverage as possible. FEMA
understands the commenter’s concerns
in seeking a simplified resource such as
a map depicting the FFRMS floodplain
and is coordinating across the federal
government to develop additional tools
beyond the FFRMS Job Aid to assist
agencies and stakeholders in
determining the appropriate vertical
flood elevation and corresponding
horizontal FFRMS floodplain. The IWG
recently released a beta version of the
2023/03/Federal-Flood-Risk-ManagementStandard-Climate-Informed-Science-ApproachCISA-State-of-the-Science-Report.pdf?trk=public_
post_comment-text (last accessed Jan. 24, 2024),
https://www.fema.gov/floodplain-management/
intergovernmental/white-house-flood-resilienceinteragency-working-group (last accessed Jan. 24,
2024), and posted to the public docket for this
rulemaking at https://www.regulations.gov/
document/FEMA-2023-0026-0007.
190 See Revised Guidelines, pg. 67.
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Federal Flood Standard Support Tool
(FFSST), a novel, interactive, map-based
tool that incorporates new data to help
users identify if a Federally funded
project is in the FFRMS floodplain, for
comment.191 However, FEMA will
initially rely on the FFRMS Job Aid
methodology to determine the FFRMS
floodplain.
2. Methodology
Comments: FEMA received questions
regarding the CISA floodplain
determination methodology.
Commenters stated the NPRM did not
specify how FEMA would determine the
best-available, actionable climate
science data and methods for the CISA,
stating the agency also did not explain
how it would select, evaluate, and
update the data and methods that
inform the CISA. One commenter asked
what sources of data and methods
FEMA would use; how FEMA would
account for uncertainty and variability
in climate projections; and how often
FEMA would update the data and
methods to reflect new scientific
findings. One commenter requested
information on the methods FEMA
would use prior to selecting data and
asked whether state agencies, floodplain
managers, and other stakeholders would
have an opportunity to inform what best
aligned with on-the-ground realities.
Both of these commenters asked how
FEMA would communicate the data and
methods to stakeholders and the public.
One commenter raised concerns that
the CISA was still emerging and stated
the overall approach would be overly
conservative. Similar to other comments
described earlier in this summary, this
commenter asked who would make the
determination to accept the science
used for CISA and which projections
would be applicable for design life and
risk aversion of the structure. This
commenter noted the FFRMS did not
mention how recent the local climate
study needed to be for the CISA and
stated that regulatory agencies choose to
enforce the most extreme flood events.
The commenter recommended FEMA
provide guidance for how to use climate
projection data for development of
unsteady hydraulic models which
would be required to determine rate of
rise of floodwater and durations.
Another commenter provided several
specific recommendations regarding
actionable model criteria for the CISA
including that the models be wellestablished in practice; not extrapolate
results; display information on
uncertainty; are well-calibrated; provide
outputs that are understandable; and be
191 89
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evaluated via peer-review. The
commenter recommended that FEMA
provide additional clarity as to what
standard of peer review would be
considered efficacious when producing
future flood risk models, and that FEMA
follow up with entities peer reviewing
models to confirm that this standard has
actually been met. This commenter
encouraged the use of a consistent and
accurate methodology for determining
the FFRMS floodplain across the
Federal government. The commenter
stated that where CISA data was not
available, utilizing the 1 percent annual
chance floodplain and the 0.2 percent
annual chance floodplain would be
appropriate, as those are well
understood and adopted for regulatory
purposes under the NFIP, as well as the
mortgage and insurance industries
broadly.
Another commenter stated the lack of
transparency in the FFRMS floodplain
determination data raised concerns
similar to concerns raised regarding
proprietary tools used in the
implementation of FEMA’s Risk Rating
2.0. The same commenter stated
proprietary tools would make it difficult
to assess whether a CISA floodplain
determination was appropriate for local
conditions for a specific action and
stated national-scale, one-size-fits-all
tools would not be readily applicable to
project sites in every location, including
rural states. The commenter requested
FEMA commit to bringing in State and
local stakeholders to provide their
perspectives.
FEMA Response: FEMA believes the
information provided in the rulemaking
docket addresses the commenters’
concerns regarding how the agency will
select, evaluate, and update the data and
methods that inform the CISA and
account for uncertainty and variability
in climate projections. As explained
above, the FFRMS CISA State of the
Science Report and FFRMS Job Aid
provide the public with information on
the best available and actionable data
for the CISA and the methodology the
agency intends to initially use to
determine the FFRMS floodplain using
the CISA. The FFRMS CISA State of the
Science Report and the Revised
Guidelines provides details on how the
agency will determine the availability
and actionability of data for the CISA.
The FFRMS Job Aid provides the
methodology and process FEMA will
use, based on those resources, to
determine the FFRMS floodplain.
As explained above, FEMA makes the
determination for Step 1 of the 8-step
process, in coordination with
applicants, and will work with State
agencies, floodplain managers, and
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other stakeholders during this process to
best understand the on-the-ground
realities. Pursuant to 44 CFR 9.11(d)(6),
a more restrictive Federal, State, or local
standard will be used in lieu of the
FFRMS. This includes the use of local
CISA data and methods that have been
adopted by a community for use in
floodplain management, as long as such
data result in a more restrictive
standard. FEMA notes that the agency
did communicate information on the
data and methodology to determine the
FFRMS floodplain to stakeholders and
the public with this rulemaking by
providing the FFRMS CISA State of the
Science Report and FFRMS Job Aid in
the public docket. FEMA will provide
additional resources to SLTTs and the
public and will offer technical
assistance regarding the FFRMS
floodplain determination as part of the
FFRMS implementation. FEMA
disagrees with the commenter that
agencies choose to enforce the most
extreme flood events; the CISA is based
on the best available and actionable
data, not the most extreme scenarios.
With respect to the comment
suggesting that FEMA support a
consistent and accurate methodology for
determining the FFRMS floodplain
across the Federal government, FEMA
supports the development of
interagency tools because such tools
enhance predictability and mitigate
transaction costs associated with
floodplain determinations. FEMA has
prioritized the use of such tools in its
policy approach and will initially
implement the CISA using the FFRMS
Job Aid. FEMA’s interagency
consultative role in the broader
implementation of the FFRMS across
the Federal government, through the
agency’s participation in the Flood
Resilience IWG and the FIFM–TF, helps
ensure consistent and effective
implementation. FEMA’s FFRMS policy
further provides details on how FEMA
will coordinate with other agencies
when implementing actions in the same
area as another Federal agency. See
Section H, page 9. At the same time,
there is no requirement in the FFRMS
or the Revised Guidelines for all Federal
agencies to select the same approach or
to implement the CISA with the same
tools; the FFRMS is a resilience
standard and is meant to be flexible.192
Regarding the commenter’s question
regarding which projections would be
applicable for design life and risk
aversion of the structure, the FFRMS Job
Aid Section 2.4.1 discusses service life
including in the context of critical
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192 See
Revised Guidelines, pg. 57.
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actions.193 This information should
resolve the commenter’s question.
FEMA notes that the agency’s proposed
implementation of the CISA does not
include incorporating climate projection
data into hydraulic models (steady or
unsteady).
FEMA appreciates the
recommendations provided by another
commenter on the actionable model
criteria for the CISA. FEMA is not
relying on models for the CISA
implementation beyond the models
already utilized to produce the agency’s
regulatory and non-regulatory products
for the NFIP. Appendix H of the Revised
Guidelines 194 and the FFRMS CISA
State of the Science Report 195 provide
an overall framework for assessment of
data and models to determine available
and actionable climate science.
FEMA agrees with this commenter
that, where CISA data is not available
and not actionable, the agency will rely
on the alternative approaches as
detailed in FEMA’s FFRMS policy.
Section C.3 of FEMA’s FFRMS policy
states that FEMA will determine the
FFRMS elevation and the FFRMS
floodplain depending on the criticality
of the action. For non-critical actions,
the FFRMS floodplain is the area that
would be inundated by the lower of the
0.2 percent annual chance flood or 2
feet of freeboard above the BFE. For
critical actions, the FFRMS floodplain is
the area that would be inundated by the
higher of the 0.2 percent annual chance
flood or 3 feet of freeboard above the
BFE. For locations where information
about the elevation and/or extent of the
0.2 percent annual chance floodplain is
not available, the FFRMS floodplain is
3 feet of freeboard above the BFE. To
clarify, the FVA relies on the 1 percent
annual chance floodplain but
incorporates an additional measure of
safety beyond the 1 percent annual
chance floodplain. If available 0.2
percent annual chance floodplain data
is not available, FEMA will utilize the
appropriate FVA to determine the
FFRMS floodplain and elevation.
Finally, FEMA believes the
interagency tools used for FFRMS
implementation have been transparent
in nature. The tools FEMA will utilize
to implement the FFRMS are not
proprietary. FEMA, as a co-chair of the
Flood Resilience IWG, under the
National Climate Task Force, facilitated
the publication of both the FFRMS Job
193 See
FFRMS Job Aid, pg. 14.
Revised Guidelines, pgs. 16–17, 50–52.
195 See FFRMS CISA State of the Science Report,
pgs. 7–8.
194 See
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Aid 196 and FFRMS CISA State of the
Science Report.197 The FFRMS Job Aid
helps federal agencies and their nonfederal partners (including potential
federal financial aid recipients) conduct
a screening to determine if a proposed
federally funded action will be located
within an FFRMS floodplain, based on
any of the three approaches in
accordance with Sec. 2(a)(1) of
Executive Order 11988, as amended.
FEMA will initially utilize the FFRMS
Job Aid to make these determinations,
and this resource was posted in the
public docket of this rulemaking for
transparency to the public. As explained
above, FEMA makes the determination
for Step 1 of the 8-step process, in
coordination with applicants, and will
work with State and local communities
during the 8-step process. FEMA will
accept local CISA data and methods that
have been adopted by a community for
use in floodplain management, as long
as such data result in a more restrictive
standard and will help further ensure
local needs are met.
Comment: One commenter requested
FEMA specify which NOAA sea level
rise (SLR) scenario the agency would
consider as the minimum standard to
apply the CISA to HMA grant project
benefit-cost analysis (BCA) and designs.
The commenter also requested FEMA
specify under what conditions it would
allow higher SLR scenarios to be used,
stating the lack of clarity would result
in slowdowns and inconsistency in
application reviews across FEMA
regions and projects. The commenter
requested FEMA clarify whether the
agency would defer to applicant or State
policies that may incorporate higher
projections and otherwise meet the
criteria for the CISA.
FEMA Response: FEMA is not
codifying the specific climate scenarios
to be used as part of the CISA analysis.
As explained above, FEMA is relying on
interagency processes to select and
evaluate the data and methods used to
implement the FFRMS. In the proposed
rule, FEMA referred readers to the
196 See https://www.fema.gov/sites/default/files/
documents/fema_ffrms-floodplain-determinationjob-aid.pdf (last accessed Jan. 24, 2024) and posted
to the public docket for this rulemaking at https://
www.regulations.gov/document/FEMA-2023-00260004.
197 Available at https://www.whitehouse.gov/wpcontent/uploads/2023/03/Federal-Flood-RiskManagement-Standard-Climate-Informed-ScienceApproach-CISA-State-of-the-ScienceReport.pdf?trk=public_post_comment-text (last
accessed Jan. 24, 2024), https://www.fema.gov/
floodplain-management/intergovernmental/whitehouse-flood-resilience-interagency-working-group
(last accessed Jan. 24, 2024), and posted to the
public docket for this rulemaking at https://
www.regulations.gov/document/FEMA-2023-00260007.
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FFRMS Job Aid and the FFRMS CISA
State of the Science Report, which were
posted to the public docket associated
with this rulemaking.198 FEMA has also
posted the FFRMS Job Aid on its
website 199 and will leverage this tool
when implementing the FFRMS.
Consistent with the FFRMS Job Aid,
FEMA will use the intermediate
scenarios for non-critical actions and
intermediate-high scenarios for critical
actions using the SLR data from
NOAA.200
In response to the commenter’s
concerns regarding the use of higher
SLR scenarios and whether FEMA
would accept higher standards, 44 CFR
9.11(d)(6) provides that a more
restrictive Federal, State, or local
standard will be used in lieu of the
FFRMS. Thus, if a more restrictive State
or local standard relied on a higher SLR
scenario, that more restrictive standard
would be used. FEMA notes the
determination on the information the
applicant is using under part 9 has
always been made by the agency and
thus, FEMA does not anticipate delays
with projects as a result of the FFRMS
implementation.
Comment: A commenter stated that
FEMA’s policy approach was not
straightforward, as the boundaries and
elevations for both the FVA and 0.2PFA
must be identified for each project and
then compared to establish the final
floodplain but stated there was little
information on how those boundaries
and elevations would be determined.
Similar to other commenters above, the
commenter asked who would conduct
the analysis, what data would be used,
and what ground-truthing if any would
be performed. The commenter stated
this must be determined prior to FFRMS
implementation. This commenter stated
CISA’s application was not understood
nor was it likely to be consistent given
the significant leeway provided to the
Regional Administrators. The
commenter requested FEMA explain
how the agency would choose the
FFRMS approach it would take, what
data the agency would rely on, and
provide publicly available maps
depicting the regulated floodplain
(whether that floodplain was
determined based on the 1 percent
annual chance floodplain, the 0.2
percent annual chance floodplain, or
using the CISA, FVA, or any other
198 See https://www.regulations.gov/document/
FEMA-2023-0026-0004.
199 See https://www.fema.gov/sites/default/files/
documents/fema_ffrms-floodplain-determinationjob-aid.pdf (last accessed Jan. 24, 2024).
200 FFRMS Job Aid, pgs. 20–21. NOAA viewer
available at https://coast.noaa.gov/slr/ (last
accessed Mar. 28, 2024).
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methodology). The commenter stated
the FFRMS was otherwise premature,
and FEMA should cease
implementation until these efforts were
complete.
FEMA Response: FEMA understands
the commenter’s concern that both the
FVA and 0.2PFA will be identified
where the CISA is not available and/or
actionable. However, FEMA does not
believe this analysis will be overly
burdensome to the agency or to
applicants. FEMA has made, and will
continue to make, floodplain
determinations partnering with
applicants in the 8-step decision-making
process. The FFRMS Job Aid provides
the methodology and process by which
the FVA and 0.2PFA can be determined.
This document is publicly available on
FEMA’s website and was posted to the
public docket with this rulemaking.
Using the FFRMS Job Aid, FEMA can
determine the FFRMS floodplain
relevant to a particular location within
approximately 23 minutes.
FEMA disagrees with the commenter
that the CISA’s application is not
understood nor likely to be consistent
given the resources provided with this
rulemaking as detailed above. The
FFRMS CISA State of the Science
Report and the FFRMS Job Aid help
Federal agencies and the public better
understand the CISA, the availability
and actionability of the CISA data, and
how to determine the FFRMS floodplain
using the CISA, FVA, and the 0.2PFA.
FEMA does not agree with the
commenter that FFRMS
implementation, including the CISA,
will result in inconsistency. FEMA does
not believe Regional Administrators are
provided with a level of discretion to
result in inconsistent FFRMS
implementation. Regional
Administrators have historically had the
authority provided in 44 CFR 9.7, and
FEMA is not changing their authority
with this rule.
FEMA notes that the agency explains
how it will choose the FFRMS approach
to be taken in the FFRMS policy.
Section C.3 of the FFRMS policy states
FEMA will determine the FFRMS
elevation and the FFRMS floodplain
depending on the criticality of the
action. For non-critical actions, where
the CISA is not available, the FFRMS
floodplain is the area that would be
inundated by the lower of the 0.2
percent annual chance flood or 2 feet of
freeboard above the BFE. For critical
actions, where the CISA is not available,
the FFRMS floodplain is the area that
would be inundated by the higher of the
0.2 percent annual chance flood or 3
feet of freeboard above the BFE. For
locations where information about the
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elevation and/or extent of the 0.2
percent annual chance floodplain is not
available, the FFRMS floodplain is 3
feet of freeboard above the BFE. To
clarify, the FVA relies on the 1 percent
annual chance floodplain but
incorporates an additional measure of
safety beyond the 1 percent annual
chance floodplain. If available 0.2
percent annual chance floodplain data
is not available, FEMA will utilize the
appropriate FVA to determine the
FFRMS floodplain and elevation.
As explained above, FEMA will
initially rely on the FFRMS CISA State
of the Science Report and the FFRMS
Job Aid to implement the FFRMS.
FEMA appreciates the desire to have
maps depicting the FFRMS floodplain
and is coordinating across the Federal
government to develop additional tools
beyond the FFRMS Job Aid to assist
agencies and stakeholders in
determining the appropriate vertical
flood elevation and corresponding
horizontal FFRMS floodplain. However,
FEMA will initially rely on the FFRMS
Job Aid methodology to determine the
FFRMS floodplain. Given the agency
made resources publicly available on
this rulemaking docket to determine the
FFRMS floodplain, FEMA does not
believe delaying the FFRMS
implementation is needed. Flood risk is
not static and will evolve over time due
to changing conditions. Particularly in
the context of Federal grantmaking,
FEMA does not believe it would be
appropriate to delay FFRMS
implementation pending a
comprehensive FFRMS floodplain
mapping of the United States. The
decision to proceed in this matter is also
consistent with FEMA’s historical
practice of using best available
information in the 8-step process, which
also resulted in some degree of
uncertainty as part of the project
planning and application process.
Comment: A commenter noted the
key language of ‘‘best available’’ and
‘‘actionable’’ in the definition of the
CISA as determining the reliability,
usability, and overall credibility of the
final floodplain identification. The
commenter noted FEMA’s consistent
use of the terminology and the
definitions found in Appendix H of the
Revised Guidelines. The commenter
agreed with the terminology but
recommended the inclusion of
granularity, stating that climateinformed flood risk granular data is
property-specific data. The commenter
stated granular data has three significant
characteristics: structure specific
identifications, first floor height
assessments, and high-resolution digital
elevation model (DEM) data. To reliably
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assess future flood risk, the commenter
stated FEMA must be able to both
identify the property itself and the
specific structure(s) on that property
that require separate assessments. The
commenter wrote that the identification
requires geospatial data that can reliably
assess the geographical boundaries of a
property and its structure(s), and
without this, risk assessments would
not reflect the true risk to the structure.
The commenter went on to explain how
these assessments involved models
based on underlying data inputs that
reliably determine the first floor height
elevation relative to sea level and
ground level and require the use of
DEM. The commenter stated the key to
reliability is the use of high-resolution
DEM, the level of granularity necessary
to permit reliable assessment of first
floor height elevation and related
footprint data. The commenter
recommended FEMA advocate for the
addition of ‘‘granular’’ as a necessary
characteristic for ‘‘best available,
actionable science.’’
The same commenter stated that
FEMA’s flexible approach would likely
facilitate the uptake of critical forwardlooking climate and flood assessment
methodologies and where those
techniques and solutions needed time to
develop, still accurately account for
flood risk through proven approaches.
The commenter stated that while a
forward looking, climate-informed
approach would be the best framework
for understanding flood and other
natural hazard risk in the future, not
every community, builder, or developer
is currently equipped to understand and
account for that risk. As building the
knowledge base would take time, the
commenter recommended use of the
waterfall approach proposed by FEMA’s
policy allowing the FFRMS floodplain
to be determined using the FVA or
0.2PFA. The commenter encouraged
FEMA to depict the 0.2 percent annual
chance floodplain on maps consistent
with the requirements of the Biggert
Waters Flood Insurance Reform Act of
2012 (BW–12).
FEMA Response: FEMA appreciates
the commenter’s emphasis on the
importance of best available, actionable
science to the CISA. FEMA agrees that
a determination of the location of an
action and site-specific details of the
action that are needed for the floodplain
determination and minimization of
impacts requires a variety of granular
data. However, all of the science and
data used to define the floodplain does
not necessarily need to be granular to be
actionable. For example, regional sea
level rise data is considered actionable
best available science in the FFRMS
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CISA State of the Science Report but
would not satisfy the definition of
granular data provided by the
commenter. FEMA will continue to use
granular data, where appropriate, such
as detailed digital elevation models to
determine floodplain extents and first
flood elevations for structures that are
part of Federal actions. FEMA will
further consider the commenter’s
request to incorporate granularity
through the use of structure-specific
identifications, first floor height
assessments, and high-resolution digital
elevation model (DEM) data as part of
the agency’s role in the IWG.
FEMA agrees with the commenter
that, given that the best available data is
not available and/or actionable in all
locations, both FVA and 0.2PFA should
be leveraged to determine the FFRMS
floodplain. FEMA also agrees it is
important to depict the 0.2 percent
annual chance floodplain on
community maps consistent with the
requirements of BW–12.
Comment: A commenter asked
whether the approaches in the FFRMS
policy should be used to develop FIRMs
or FIS. The commenter stated the
methods listed to develop the floodplain
should only apply to those actions listed
in the Applicability section of the
FFRMS policy.
FEMA Response: The approaches
listed in section C of FEMA’s FFRMS
policy document for determining the
FFRMS floodplain are not used to
develop FIRMs or FIS. FIRMs and FIS
are a starting point for the floodplain
determination under the 8-step process.
The approaches listed in section C of
the policy are only applicable to the
actions detailed in the applicability
section of FEMA’s FFRMS policy.
Comment: Two commenters stated
that FEMA’s 2016 proposed rule
indicated the use of CISA was not
appropriate and stated FEMA’s current
reliance on CISA was unsubstantiated.
The commenters noted an article that
expressed concerns with climate
science 201 and cited statements in the
FFRMS CISA State of the Science
Report as evidence that attempts to
apply the CISA to set flood risk
management standards would be
subjective. Both commenters requested
transparency and adherence to the
principles of replicability and
independent peer review if FEMA
utilizes the CISA. One of the
commenters stated FEMA must adhere
to a specific set of criteria to clarify the
201 See Jesse M. Kennan, ‘‘A climate intelligence
arms race in financial markets,’’ Science 365 (6459),
pp. 1240–1243, abstract available at https://
www.science.org/doi/10.1126/science.aay8442 (last
accessed Mar. 21, 2024).
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standard and that there must be metrics.
The commenters stated that the other
approaches provided numerical targets
that define what success shall be. Both
commenters stated that if FEMA could
not provide decision criteria to be
applied in the CISA approach, the
agency should eliminate it as a
standard.
FEMA Response: Since the
introduction of the CISA in 2015,
additional data has become available to
better inform CISA. The FFRMS CISA
State of the Science Report provides a
recommendation on available and
actionable CISA data.202 Many of the
concerns expressed by the commenters
are further addressed in that report and
explain why the CISA data is not
actionable in all locations. FEMA
disagrees with the commenters’
suggestion that certain statements in the
FFRMS CISA State of the Science
Report regarding multiple scenarios and
hybrid approaches that could be used to
determine the CISA serve as evidence
that the CISA is too subjective. The
CISA guidance in Appendix H of the
Revised Guidelines and the FFRMS
CISA State of the Science Report
provide broad guidance for where the
CISA might be available and actionable
with sufficient expertise, local data, and
project-specific analysis. However,
FEMA prioritized the type and
criticality of the action involved, the
availability and actionability of the data,
and equity concerns, and determined
that applying the CISA through complex
expert project-specific modeling was not
appropriate for FEMA given the
agency’s role in helping people recover
from disasters in an expedited manner
and to reduce the subjectivity concerns
of the commenters stated above. FEMA
instead decided to use consensus
interagency approaches that were
readily accessible and do not require
202 The FFRMS CISA State of the Science Report
identifies the latest interagency Federal guidance
for regionally-based SLR projections as available
and actionable by recommending that all agencies
should use these data as part of a CISA approach.
At pg. 22, the Report states ‘‘Federal agencies
should apply this latest interagency Federal
guidance for regionally-based SLR projections.
Scenarios and time horizons should use a
consistent national approach based on risk
tolerance and criticality.’’ However, the Report also
warns against using the simplified approach with
SLR in areas subject to runup and overtopping on
pg. 28 ‘‘Notably, areas subject to runup and
overtopping can be very sensitive to changes in
water level (including due to SLR) and the
variability of the slope—so within a CISA
implementation, these areas should be treated with
appropriate analysis and not simple linear addition
of flooding components.’’ Based on these
guidelines, the FFRMS Job Aid establishes the use
of simplified CISA in specific areas, namely in
some coastal environments, specifically along lowlying coastal shorelines on the Atlantic and Gulf
Coasts. See FFRMS Job Aid, pg. 10.
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project specific CISA modeling found in
the FFRMS Job Aid.
The FFRMS Job Aid details the
underlying methodology used to
determine the FFRMS floodplain,
including using the CISA, and FEMA
believes that resource provides
sufficient transparency and replicability
to stakeholders and the public. FEMA
will initially use the FFRMS Job Aid to
make the FFRMS floodplain
determination. FEMA is coordinating
across the federal government to
develop additional tools beyond the
FFRMS Job Aid to assist agencies and
stakeholders in determining the
appropriate vertical flood elevation and
corresponding horizontal FFRMS
floodplain.
FEMA does not believe that the use of
CISA results in uncertainty in the 8-step
process. The FFRMS Job Aid details the
underlying methodology used to
determine the FFRMS floodplain,
including using the CISA, and FEMA
believes that resource provides
sufficient transparency and replicability
to stakeholders and the public. The
FFRMS CISA State of the Science
Report, upon which the FFRMS Job Aid
is based, was reviewed by subject-matter
experts across the members of the Flood
Resilience IWG, including staff from
NOAA’s National Weather Service, the
USGS’s Water Resources Mission Area
and Coastal/Marine Hazards and
Resources Program, FEMA’s National
Flood Hazard Mapping Program, and
other members of the FFRMS Science
Subgroup.203
FEMA agrees with one of the
commenters that the FVA and 0.2PFA
provide some additional clarity to
stakeholders because the 1 percent
annual chance and 0.2 annual chance
floodplains are more commonly used
and depicted on FEMA regulatory and
non-regulatory mapping products.
FEMA’s FFRMS policy provides for the
use of these approaches where the CISA
data is not available or not actionable.
However, FEMA does not believe that
the CISA must be eliminated simply
because the FVA and 0.2PFA are more
commonly understood. The FFRMS
CISA State of the Science Report and
the FFRMS Job Aid are resources the
public can use to better understand the
CISA and how FEMA will implement it.
These resources provide the requisite
decision criteria for how the CISA will
be determined by FEMA in the initial
FFRMS implementation. FEMA will
provide additional resources and
technical assistance to SLTTs and the
public regarding the FFRMS floodplain
203 See
FFRMS CISA State of the Science Report
at i.
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determination as part of the FFRMS
implementation to help further educate
stakeholders.
3. Use of State and/or Local CISA Data
Several commenters requested FEMA
consider local CISA data in making the
CISA floodplain determination.
Comments: Some commenters
requested the use of specific State and/
or local data. One commenter stated the
use of locally available CISA data and
methods would provide opportunities
for underserved communities to provide
critical local input. One commenter
recommended FEMA develop a
framework for evaluating whether local
CISA data is technically credible and
appropriate. One commenter stated if
State, Tribal, territorial, or local data
resulted in CISA-based elevation
standards that met or exceeded
standards developed using Federal data,
then FEMA should apply the higher,
locally available standards, if
reasonable. The commenter stated
Federal data should act as a floor for
CISA calculation under the FFRMS.
Another commenter stated FEMA
should accept local data where it is
accurate and sufficiently protective to
maximize the effectiveness of the rule.
The same commenter requested FEMA
consider the potential inequities in
access to CISA. Another commenter
recommended FEMA develop a
framework for evaluating whether local
CISA data is technically credible and
appropriate.
In addition to requesting FEMA
accept local CISA data, one commenter
sought additional details on the FEMA
FFRMS CISA data development to avoid
developing duplicative or conflicting
data. The commenter stated FEMA’s
Federal floodplain management tools
(i.e., FIS and FIRMs) are used for
applications beyond their originally
intended purpose, including
comprehensive planning and resilience
planning. The commenter encouraged
FEMA to consider how its CISA FFRMS
data and tools could be used for
comprehensive flood risk planning at
multiple levels of government when
developing the products. The
commenter also encouraged FEMA to
coordinate with stakeholders when
developing its CISA data and methods.
Two commenters agreed that FEMA
should further engage with stakeholders
regarding CISA data and methods.
FEMA Response: FEMA agrees with
the commenter that Federal data should
act as a floor for the CISA calculations
under the FFRMS. SLTTs can provide
input into the determination. Pursuant
to 44 CFR 9.11(d)(6), a more restrictive
Federal, State, or local standard will be
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used. This includes the use of local
CISA data and methods that have been
adopted by a community for use in
floodplain management, as long as such
data results in a more restrictive
standard.
FEMA notes the FFRMS Job Aid is a
resource to help Federal agencies and
their non-Federal partners (including
potential federal financial aid
recipients) conduct a screening to
determine if a proposed federally
funded action will be located within an
FFRMS floodplain, based on the CISA,
FVA, or 0.2PFA, in accordance with
Sec. 2(a)(1) of Executive Order 11988, as
amended. FEMA will continue to
collaborate across the Federal
government to develop tools to facilitate
the implementation of CISA.
Regarding the framework for
accepting local CISA data, FEMA will
continue to rely on 44 CFR 9.7, FEMA
Policy 104–008–2: Guidance on the Use
of Available Flood Hazard
Information,204 and the Revised
Guidelines in determining whether
CISA and flood hazard data is available
and actionable. FEMA is coordinating
across the federal government to
develop additional tools to assist
agencies and stakeholders in
determining the appropriate vertical
flood elevation and corresponding
horizontal FFRMS floodplain.
FEMA’s policy approach considers
situations where CISA data is not
available. Specifically, the policy
approach detailed in the FFRMS Policy
provides for the use of the FVA or
0.2PFA depending on the criticality of
the action and data availability. FEMA
believes the agency’s policy approach
will reduce concerns with
underbuilding or overbuilding and thus
provide a more cost-effective, equitable
approach.
As previously explained, FEMA is
relying on interagency processes to
select and evaluate the data and
methods used. Appendix H of the
Revised Guidelines 205 provides an
overview of the available and actionable
data for CISA, which is the basis for
these interagency supporting tools. The
FFRMS CISA State of the Science
Report 206 provides a review and update
204 Available at https://www.fema.gov/sites/
default/files/2020-04/Available_Flood_Hazard_
Information_Policy_104-008-2.pdf (last accessed
Jan. 24, 2024).
205 Available at https://www.fema.gov/sites/
default/files/documents/fema_implementingguidelines-EO11988-13690_10082015.pdf (last
accessed Jan. 24, 2024).
206 See https://www.whitehouse.gov/wp-content/
uploads/2023/03/Federal-Flood-Risk-ManagementStandard-Climate-Informed-Science-ApproachCISA-State-of-the-Science-Report.pdf?trk=public_
post_comment-text (last accessed Dec. 14, 20 last
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of the best-available, actionable science
that can support application of the
Climate-Informed Science Approach
(CISA), reflecting science and
technology advancements made since
Executive Order 13690 was issued in
2015.207 FEMA will rely on these and
future interagency publications for CISA
data. The Revised Guidelines also
provide an explanation of how the
FFRMS will be updated in the future.
FEMA appreciates the importance of
comprehensive flood risk planning and
is developing additional resources for
communities and the public to better
understand their current and future
flood risks. For example, FEMA’s Future
of Flood Risk Data (FFRD) initiative will
provide a more comprehensive picture
of the country’s flood hazards and risks
by leveraging new technologies to
include more efficient, accurate, and
consistent flood risk information across
the nation.208 These resources can be
used by communities for planning
purposes. FEMA will continue to engage
with SLTTs and the public on the
development and enhancement of flood
risk resources, including FFRMS
implementation resources for the CISA,
FVA, and 0.2PFA.
Comment: One commenter requested
FEMA provide training resources to
help local communities, practitioners,
and property owners understand the
impact of the rule.
FEMA Response: FEMA values
additional input from SLTT partners
and the public in the 8-step process.
FEMA will provide additional resources
to SLTTs and the public as part of the
FFRMS implementation, and FEMA’s
regional offices will provide technical
assistance to applicants for FEMA
programs.
4. Other Data Concerns
Comment: One commenter stated
concerns with the language in proposed
§ 9.7(b)(1), which stated that FEMA
shall obtain enough information so that
it can fulfill the requirements in part 9
to (i) avoid Federal action in floodplain
and wetland locations unless they are
the only practicable alternatives and (ii)
Minimize harm to and within
floodplains and wetlands). The
commenter stated that the language was
too vague to have any meaning, as
‘‘enough information’’ did not inform
the agency or the public of the
requirement. The commenter
accessed Jan. 24, 202423) and also posted to the
public docket with this rulemaking at https://
www.regulations.gov/document/FEMA-2023-00260007.
207 80 FR 6425 (Feb. 4, 2015).
208 See https://www.fema.gov/fact-sheet/futureflood-risk-data-ffrd (last accessed Mar. 26, 2024).
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recommended some identifiable
minimum standard be provided.
FEMA Response: FEMA disagrees that
the proposed language is unduly vague.
In context, paragraph (b) provides that
FEMA will make the determination as
part of the 8-step process and provides
a list of the types of information FEMA
will use to make this determination
including the current and future
flooding characteristics detailed in
paragraph (b)(3). Not all of this
information is required, as the
information needed to make the
floodplain or wetland determination is
action-specific and subject to data
availability.
Comment: One commenter stated
costs would increase for engineering
and planning around Federally funded
projects when implementing FFRMS,
particularly in areas where the 0.2
percent floodplain is not currently
mapped.
FEMA Response: FEMA appreciates
the commenter’s concerns regarding
costs but disagrees that engineering and
planning costs will necessarily increase
for actions subject to the FFRMS and
particularly for those in areas where the
0.2 percent annual chance floodplain is
not currently mapped. FEMA will
initially implement the FFRMS using
the FFRMS Job Aid to determine the
FFRMS floodplain and stakeholders can
also leverage this tool to determine the
CISA, FVA, and 0.2PFA where such
data is available. As FEMA’s FFRMS
policy states, where the CISA data is not
actionable and not available and
information about the elevation and/or
extent of the 0.2 percent annual chance
floodplain is also not available, the
FFRMS floodplain is the FVA. By
considering data availability in the
FFRMS floodplain determination and
providing resources to help stakeholders
understand the FFRMS floodplain
determination, FEMA believes the
commenter’s concerns are addressed.
Further, FEMA considered the costs
and benefits associated with this rule,
including the overall increased costs of
FEMA projects, in the regulatory impact
analysis provided on the docket.209
FEMA believes that the benefits of
preventing property damage, protecting
Federal investments, and potentially
saving lives justify the costs of the rule.
These benefits are a result of the
improved protection of structures and
facilities due to increased elevation and
floodproofing standards in FEMA’s
implementation of the FFRMS. This rule
will help to ensure that Federal
investments are better protected from
209 See https://www.regulations.gov/document/
FEMA-2023-0026-0013.
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flood damage, and that the natural and
beneficial values of floodplains are
preserved. FEMA notes any increased
costs are generally eligible for funding
under FEMA’s assistance programs
subject to cost share requirements.
FEMA’s Regulatory Mapping Products
Comments: Some commenters
requested clarification on the use of
current FEMA regulatory products in
the FFRMS floodplain determination.
Commenters provided input asking
FEMA to improve those maps for the
FFRMS floodplain determination and
other purposes. One commenter
requested FEMA update the agency’s
floodplain mapping techniques and
incorporate future risk into the
mapping. The commenter recommended
FEMA incorporate the
recommendations by the TMAC for
significant changes to FEMA’s
floodplain mapping techniques. The
commenter requested all agencies
collaborate and align around definitions
for floodplain mapping and share
expertise to develop CISA floodplain
definition methods that are consistent
with one another. Such consistency
would be easier and assist applicants in
adhering to agency regulations. The
commenter further recommended the
MitFLG work toward common
definitions and delineation of
floodplains to enable better interagency
collaboration and coordination on
issues related to flood risk reduction.
The commenter also stated the need to
improve and update FEMA’s regulatory
mapping products, indicating these
products were essential for communitylevel planning, yielding enhanced
resilience. The commenter stated flood
maps were essential underpinning to
drive wise land use decisions, including
where not to develop and where to
conserve lands that might aid in flood
risk reduction.
Another commenter stated the FFRMS
did not consider FIRM effective dates in
communities where FIRMs are currently
being updated and requested
clarification for applying the CISA to
those communities or applicable use of
effective flood maps. One commenter
noted FEMA’s policy approach to
leverage the 0.2PFA or FVA where CISA
data is not available and not actionable
and stated that approach was not
without challenges given FEMA’s
regulatory and other mapping products
used in the analysis of those approaches
were outdated and likely to remain so
for the foreseeable future.
A commenter recommended Federal
agencies continue relying on FEMA
flood risk data and tools for future
implementation of a climate-informed
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floodplain. The commenter noted
FEMA’s investment on flood
engineering studies and flood mapping
over the past half century and that
States and localities nationwide adopted
FEMA flood map data for flood
mitigation, community development,
and many other purposes. The
commenter stated that abandoning
current Federal efforts on flood mapping
and adopting an alternative flood map
dataset would waste Federal
investments on flood engineering
studies and flood inundation mapping.
Another commenter stated FEMA would
have the primary responsibility to
prepare the data to support the CISA
through its existing mapping activities.
The commenter noted other FEMA
mapping priorities through the agency’s
RiskMAP program and encouraged
FEMA to secure and allocate sufficient
resources and fully utilize the
Cooperating Technical Partners program
to support the CISA and related
mapping activities.
FEMA Response: FEMA appreciates
the commenters’ interest in the agency’s
flood risk mapping efforts. FEMA is
considering the TMAC
recommendations associated with future
flood conditions mapping and intends
to incorporate future flood conditions
into mapping products as practicable.210
FEMA’s interagency consultative role in
the broader implementation of the
FFRMS across the Federal government,
through the agency’s participation in the
IWG and the FIFM–TF helps ensure
consistent and effective
implementation. FEMA will continue to
work in an interagency manner in
conjunction with the Water Resources
Council, the MitFLG, and the FIFM–TF
to develop tools to facilitate the
implementation of CISA. FEMA agrees
that the agency’s regulatory mapping
products support community-level
planning that enhances resilience and
help drive wise land use decisions.
FEMA understand other commenters’
concerns regarding FIRM effective dates
and the age of FIRMs in some
communities that may no longer reflect
current flood risk. FEMA plans to
continue updating regulatory mapping
products to help address the
commenter’s concerns regarding stale
maps. However, floodplain
determinations under part 9 are not
solely predicated on existing FIRMs and
commenters’ concerns about potential
challenges with the FVA and 0.2PFA
based on the age of existing FIRMs is
thus unwarranted. As explained in the
NPRM, FEMA will use best available
information which may include
information that is non-regulatory or
FEMA preliminary flood hazard data.
To be designated as the best available
information, it must be at least as
restrictive as information provided by
effective FIRMs. Given the best available
information policy FEMA adopted,211
the agency will be continuously
improving the data associated with the
floodplain determination. FEMA notes
pursuant to 44 CFR 9.11(d)(6), a more
restrictive Federal, State, or local
standard will be used in lieu of the
FFRMS. Communities can leverage their
own data, including the use of local
CISA data and methods that have been
adopted by a community for use in
floodplain management, as long as such
data results in a more restrictive
standard. FEMA believes these
flexibilities address the second
commenter’s concerns to ensure the best
available flood risk information is being
considered in the 8-step analysis.
FEMA notes that, as explained above,
the agency is not abandoning current
efforts on flood mapping but rather is
continuing to update regulatory maps.
FEMA is not adopting an alternative
flood map dataset as part of this
rulemaking. Regulatory mapping
products are part of the NFIP’s
regulatory process and not impacted by
this rulemaking. The agency’s
investments in regulatory mapping
products are not being wasted by this
effort and will continue in support of
the NFIP’s regulatory process, as well as
to inform the public on flood risk.
FEMA further appreciates the
commenter’s concern regarding
sufficient resources and will continue to
utilize the Cooperating Technical
Partners program to support the
agency’s mapping efforts.
Comment: A commenter wrote their
support for modernizing the data and
approaches used to understand and
anticipate flood risks, stating the use of
best available data, technology, and
modeling would yield better baseline
data to account for climate-induced
increases in precipitation and
inundation. The commenter noted that
data from FIRMs in some areas can be
40 years old. The commenter noted that
FEMA predicted more accurate maps
would expand the floodplain but stated
adjustments were needed to ensure the
expanded mapping does not further
hinder Federal, State, and local efforts
210 See TMAC 2021 Annual Report, Chapter 3
Future Conditions available at https://
www.fema.gov/sites/default/files/documents/fema_
2021-technical-mapping-advisory-annual-report.pdf
(last accessed Apr. 1, 2024).
211 FEMA Policy 104–0008–2: Guidance on the
use of available flood hazard information, available
at https://www.fema.gov/sites/default/files/2020-04/
Available_Flood_Hazard_Information_Policy_104008-2.pdf (last accessed Mar. 27, 2024).
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to restore natural and beneficial
floodplain functions.
FEMA Response: FEMA does not
anticipate that more accurate mapping
of current flood risks will necessarily
expand the floodplain. FEMA’s
experience when revising existing
regulatory floodplains is that the overall
floodplain area does not generally
increase, as more accurate maps can
also mean areas are no longer
designated as being within the
floodplain. While revised maps reflect
updated data on inland hydrology,
coastal storms, and sea levels, they
focus on current conditions and do not
include projections of future changes.
FEMA does anticipate the FFRMS,
when implemented, will generally
expand the floodplain area for actions
subject to the FFRMS under part 9.
FEMA agrees with the commenter that
leveraging the best available information
in making the floodplain determination
can assist in accounting for climateinduced increases in precipitation and
inundation. As explained above, FEMA
plans to continue updating regulatory
mapping products to address the
commenter’s concerns with dated data;
however, floodplain determinations
under part 9 are not solely predicated
on existing FIRMs. FEMA will use best
available information which may
include information that is nonregulatory or FEMA preliminary flood
hazard data. To be designated as the
best available information, it must be at
least as restrictive as information
provided by effective FIRMs. FEMA
does not believe implementation of the
FFRMS will hinder restoration of
natural and beneficial floodplain
functions. Rather, it is also the policy of
FEMA to restore and preserve the
natural and beneficial values served by
floodplains in part 9.
Comment: One commenter requested
clarification on how allowing the use of
other data beyond the data found in
FIRMs or FIS would affect the CLOMR,
LOMR, No Adverse Effect, No Rise
processes.
FEMA Response: This rulemaking
does not have any impact on the current
CLOMR, LOMR, or no rise processes.
FEMA does not have a no adverse effect
process.
Interagency Tools
Comments: Some commenters
requested additional information
regarding the interagency tools FEMA
will utilize to depict the FFRMS
floodplain. A commenter wrote in
support of developing a decision
support tool to facilitate the
implementation of the FFRMS,
requesting the tool be narrowly focused,
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integrating and avoiding duplication of
existing Federal tools and data portals.
The commenter also requested the tool
incorporate local data wherever possible
and that FEMA use the tool to highlight
data gaps preventing the wider use of
CISA to encourage development of such
data in those areas. Another commenter
wrote requesting FEMA work closely
with NOAA, the White House Office of
Science and Technology Policy, and
other appropriate departments to ensure
that States, communities, and the public
can readily access information about
what data sources meet the criteria for
climate-informed science and are
considered current and credible at a
point in time. Two commenters noted
appreciation for FEMA’s work with the
Flood Resilience IWG on developing an
online mapping tool to assist in
determining the FFRMS floodplain,
including the CISA and requested
prioritizing these efforts.
FEMA Response: FEMA appreciates
the commenters’ support of the agency’s
interagency collaboration and is
continuing to work with IWG to support
the FFRMS and CISA implementation.
FEMA also appreciates the commenters’
statements on developing additional
tools to support the FFRMS
implementation across the Federal
government. FEMA agrees with the
commenter that a tool to facilitate
FFRMS implementation is an important
component to the success of the FFRMS,
and the agency published on the public
docket with this rulemaking the FFRMS
Job Aid as an initial resource. FEMA
anticipates leveraging the FFRMS Job
Aid for determining the FFRMS
floodplain when the final rule is
implemented. FEMA will continue to
collaborate across the Federal
government to develop tools to facilitate
the implementation of CISA and the
FFRMS. The IWG recently released a
beta version of the Federal Flood
Standard Support Tool (FFSST), a novel
interactive, map-based tool that
incorporates new data to help users
identify if a Federally funded project is
in the FFRMS floodplain, for
comment.212 FEMA will also continue
to rely on 44 CFR 9.7, FEMA Policy
104–008–2: Guidance on the Use of
Available Flood Hazard Information,213
and the Revised Guidelines in
determining whether CISA and flood
hazard data is available and actionable.
FR 25674 (Apr. 11, 2024).
at https://www.fema.gov/sites/
default/files/2020-04/Available_Flood_Hazard_
Information_Policy_104-008-2.pdf (last accessed
Jan. 24, 2024).
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213 Available
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Flooding Characteristics
Comment: One commenter requested
FEMA retain the requirement that
Regional Administrators identify
additional flooding characteristics in the
locations of proposed actions. The
commenter noted FEMA’s changes in 44
CFR 9.7(b)(3) from ‘‘shall’’ to ‘‘may’’
identify such flooding characteristics,
‘‘as appropriate’’ and requested ‘‘shall’’
be retained, as the flooding
characteristics identified included
important factors to consider when
minimizing harm to floodplains and
wetlands. The commenter stated there
was no adequate rationale for allowing
the Regional Administrator to ignore
any or all of the flooding characteristics.
The commenter also requested FEMA
include ‘‘evacuation and migration
corridors for wildlife, including
threatened and endangered wildlife’’ in
the list of flooding characteristics.
FEMA Response: FEMA appreciates
the commenter’s concerns but does not
believe this language change is a change
impacting how FEMA will review the
flooding characteristics. Rather, the edit
from ‘‘shall’’ to ‘‘may’’ is a clarifying
edit. As explained in the preamble to
the NPRM, the term ‘‘shall’’ suggests a
mandatory requirement for the Regional
Administrator to identify all of the
additional flooding characteristics
listed, yet the current qualifying ‘‘as
appropriate’’ language suggests the
identification was not mandatory.
FEMA’s current practices do not
mandate a review of each of the flooding
characteristics but rather only those that
are appropriate. FEMA updated this
language to reflect the Regional
Administrator’s discretion in identifying
the appropriate flooding characteristics
consistent with current practices.
FEMA also appreciates the
importance of wildlife and the
commenter’s concerns about their
habitats and evacuation and migration
corridors; however, wildlife concerns
are currently part of the flooding
characteristics considered when
determining the floodplain. The
definition of ‘‘natural and beneficial
values of floodplains and wetlands’’
addresses wildlife considerations, and
FEMA does not believe the additional
language proposed by the commenter is
required to ensure this analysis.
Comment: Another commenter
requested FEMA give local communities
a voice in the method used to determine
the appropriate vertical flood elevation
stating Federal agencies may not be
familiar with the local conditions. The
commenter gave an example of areas
with flash floods requiring an
appropriately short rainfall interval be
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evaluated to avoid missing the storm
peak.
FEMA Response: FEMA has and will
continue to consider flooding
characteristics such as those listed by
the commenter consistent with § 9.7.
FEMA notes that communities provide
input into the floodplain determination
for part 9 and the agency coordinates
with applicants and State and local
officials as appropriate throughout the
8-step process. As explained above,
pursuant to 44 CFR 9.11(d)(6), a more
restrictive Federal, State, or local
standard will be used. This includes the
use of local CISA data and methods that
have been adopted by a community for
use in floodplain management, as long
as such data results in a more restrictive
standard. Projects subject to the FFRMS
will continue to be designed to meet
local needs as appropriate.
Best Available Information
Comment: Four commenters
requested FEMA recognize the value of
Indigenous Knowledge and Tribal
resources in the 8-step process. One
commenter supported the proposed
range of data sources to ensure FEMA
relies on the best available information
when determining flood risk but
requested FEMA incorporate Indigenous
Knowledge when considering best
available information for determining
flood risk. The commenter noted the
Biden Administration’s guidance to
Federal agencies to increase reliance on
Indigenous Knowledge to inform
Federal decision-making and
recommended FEMA incorporate the
use of such information in the final rule.
Specifically, the commenter requested
FEMA revise § 9.7(c)(3)(ix) to read
‘‘State, Regional, and Tribal Agencies or
governing bodies,’’ add a new
§ 9.7(c)(3)(xi) to identify Indigenous
Knowledge as another source of highquality information and seek
opportunities for engagement and
promotion of best practices to include
Indigenous Knowledge in FEMA
decision making. A second commenter
provided similar feedback, supporting
the expanded inclusion of diverse data
sources and requesting FEMA integrate
Indigenous Knowledge into the final
rule while also continuing to collaborate
with Tribal Nations and Indigenous
Peoples to incorporate Indigenous
Knowledge into FEMA policies. A third
commenter supportive of incorporating
Indigenous Knowledge into the 8-step
process recommended the final rule
direct FEMA to seek input from local
Indigenous communities when
developing alternatives to an action and
assessing impacts. This commenter
noted that these communities may have
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unique, proven methods for reducing
flood risk and incorporating this
knowledge would recognize Indigenous
connections to the land and help
produce better-informed decisions.
Another commenter requested FEMA
align with States and Tribes on data
practices. Consistent with other
commenters above, this commenter
requested FEMA consider State, Tribal,
territorial, or local CISA-based elevation
standards data that met or exceeded
standards developed using Federal data.
The commenter stated FEMA should
apply the higher, locally-available
standards if reasonable. The commenter
provided an example of State SLR
guidance using State data, requesting
that FEMA allow us of this data so long
as it met or exceeded the Federal data.
The commenter stated that Federal data
should act as a floor for CISA
calculation under the FFRMS and that
if reasonable, locally available data
meets or exceeds the floor set by Federal
data, then it should be accepted for
implementation consistent with FEMA’s
proposed approach to leverage the best
available data to inform flood risk. The
commenter noted the incorporation of
local data and methods can provide
opportunities to achieve higher
resolution data and in-depth
understanding of contextual climate
impacts. The commenter requested
FEMA encourage intergovernmental and
interstate collaboration to share and
improve best practices for underlying
local data collection, including agency
guidance on expanding locally available
data.
FEMA Response: As one commenter
stated, President Biden issued Federal
government-wide guidance on
recognizing and including Indigenous
Knowledge in Federal research, policy,
and decision making.214 FEMA agrees
with the commenters on the importance
of Indigenous Knowledge in the 8-step
process. FEMA agrees with the
commenter to ensure Tribes are
specifically incorporated into
§ 9.7(c)(3)(ix) and is updating this final
rule to state, ‘‘Agencies of State,
Regional, and Indian Tribal
Governments.’’ This edit will ensure
consideration of Indian Tribal
government data in the floodplain
determination. FEMA believes the
current language in § 9.7(c)(3)(x)
regarding local sources covers those
Tribes that are not considered to be an
214 See ‘‘Implementation of Guidance for Federal
Departments and Agencies on Indigenous
Knowledge,’’ Nov. 30, 2022, found at https://
www.whitehouse.gov/ceq/news-updates/2022/12/
01/white-house-releases-first-of-a-kind-indigenousknowledge-guidance-for-federal-agencies/ (last
accessed Jan. 24, 2024).
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Indian Tribal government under 42
U.S.C. 5122(6).
FEMA supports the inclusion of
Tribal and Indigenous knowledge into
the FFRMS process. As requested by the
second commenter, FEMA is integrating
Indigenous Knowledge into the FFRMS
policy accompanying this rule. The
agency will collaborate with Tribal
Nations and Indigenous Peoples to
incorporate Indigenous Knowledge into
FEMA policies consistent with the
guidance referenced above. FEMA
further agrees with the third commenter
that local Indigenous communities may
have methods for reducing flood risk
that recognize Indigenous connections
to the land and help produce betterinformed decisions. To ensure input
from local communities, FEMA follows
the process for early and final public
notices in the 8-step process. See
§§ 9.8(c)(4) and 9.12. The current
regulatory text incorporates notice to
Tribes when effects may occur on Tribal
lands in the early public notice process.
See § 9.8(c)(4)(ii). The final public
notice includes notification to any
entity that received early public notice.
See § 9.12(a). These notifications give
Tribal communities the ability to
provide input on alternatives and
impacts in the 8-step process. This
ensures consideration of Tribal and
Indigenous Peoples throughout the 8step process.
Finally, FEMA agrees with the fourth
commenter that Federal data should act
as a floor for CISA calculations under
the FFRMS. FEMA will apply higher,
locally available standards consistent
with § 9.11(d)(6) that requires a more
restrictive Federal, State, or local
standard be used. This includes the use
of local CISA data and methods that
have been adopted by a community for
use in floodplain management, as long
as such data results in a more restrictive
standard. FEMA agrees with the
commenter that locally available data
can provide valuable input into the
area’s climate impacts and will leverage
those higher standards adopted by
communities. FEMA values additional
input from SLTT partners and the
public in the 8-step process and will
continue to engage by providing
additional resources and technical
assistance as the FFRMS is
implemented.
Comment: One commenter requested
FEMA include examples of ‘‘other
sources’’ in § 9.7(c)(iii).
FEMA Response: FEMA provides a
list of other sources in § 9.7(c)(3)(i)–(x)
of this final rule. As explained above,
the agency will provide additional
resources and technical assistance to
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SLTTs and the public as part of the
FFRMS implementation.
Other Data Concerns
Comment: One commenter requested
FEMA provide additional guidance on
how to identify the appropriate lifecycle
for a proposed action that uses CISA to
determine the FFRMS floodplain. The
commenter noted that FEMA used a
default 50-year lifecycle analysis (in the
regulatory impact analysis) and stated
that would not be appropriate for all
actions. The commenter requested
FEMA provide information on how the
50-year lifecycle timeline was
determined, as well as guidelines on
how to determine the appropriate
lifecycle on a case-by-case basis.
FEMA Response: FEMA’s regulatory
impact analysis was based on a report
defaulting to a 50-year lifecycle, but
FEMA intends to determine the
appropriate service life on a case-bycase basis for each action. The FFRMS
Job Aid provides additional information
on service life and how FEMA will
make those individual
determinations.215
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J. FFRMS Implementation
FEMA received several comments
regarding implementation of the
FFRMS. Commenters raised general
process concerns with compliance with
and enforcement of the FFRMS, and
costs and delays with implementing the
FFRMS. Commenters also inquired as to
how FEMA would coordinate with other
Federal agencies when implementing
the FFRMS, how FEMA would
effectively complete outreach to ensure
effective implementation of the FFRMS,
and how FEMA would resolve
environmental justice concerns.
1. Generally
Comment: A commenter stated raising
individual properties or a group of
properties could not be done without
considering potential for impounding
water on neighboring properties and
roadways. The commenter
recommended a holistic approach with
local land use agencies, municipalities,
and DOTs that identify the best path
forward for a roadway corridor.
FEMA Response: FEMA appreciates
the commenter’s concerns regarding the
impact of elevation on neighboring
properties and roadways. FEMA takes a
holistic approach through the 8-step
process as the agency considers the
impacts within or affecting floodplains
and wetlands. FEMA applicants propose
actions based on their needs and
planning efforts to protect life and
215 See
FFRMS Job Aid, pg. 14.
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property. Where FEMA provides
funding for applicable actions, the
FFRMS will help ensure resilience to
structures and facilities against both
current and future flood risks, including
roadway corridors referenced by the
commenter. Section G.2 of the FFRMS
policy provides additional details on the
application of the FFRMS resilience
standard to facilities such as roadway
corridors.
Comment: A commenter stated that
FEMA’s framework, while seeking to
retain flexibility and be easily
understood and consistently applied,
would complicate understanding and
implementation on the ground, as the
framework created a confusing
inundation of floodplain definitions—
each of which could be used differently
depending on the program and/or
situation for which it is being used and/
or applied.
This commenter noted the majority of
structures and facilities impacted by the
rulemaking were not residential in
nature but stated concerns about
implementation and difficulties of
confusing and burdensome
requirements. The commenter stated
FEMA’s proposed FFRMS floodplain
definition and the vagueness of its
depiction would generate countless
unique floodplain definitions for
programs. The commenter stated
concern that once adopted and
implemented for a very small number of
Federally-funded residential projects,
the Federal government would seek to
expand the FFRMS applicability to all
structures and that such a move would
significantly impact housing
affordability across the country.
The commenter noted the 1 percent
annual exceedance probability (AEP)
was set as the basis for the NFIP in the
1960s, and the 1 percent AEP was
considered a fair balance between
protecting the public and overly
stringent regulation. The commenter
stated that Executive Order 11988 has
been historically and purposely tied to
the 1 percent annual chance floodplain
and that the Federal government had
relied on the 1 percent annual chance
floodplain when determining the extent
of its authority and reach for most of its
related programs, including the NFIP,
FIRMs, and the mandatory flood
insurance purchase requirements. The
commenter stated this was no longer the
case under the proposed rule.
The commenter stated that during the
1978 Guidelines drafting, concerns were
raised about the need to provide a
higher degree of protection for certain
activities, and the 1978 Guidelines
bifurcated the definition of floodplain
for critical and non-critical actions. The
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commenter noted that FEMA was taking
a similar approach for the FFRMS
floodplain per the Revised Guidelines,
separating the definition further
depending on the type of action and
data availability. The commenter stated
that unlike the revision made in the
1978 Guidelines where the 1 percent
annual chance floodplain and the 0.2
percent annual chance floodplain were
relatively well-known recurrence
intervals and elevation levels that could
be calculated, while the FFRMS
floodplain is a ‘‘mystery.’’ The
commenter stated that with the FFRMS
floodplain, the public would be faced
with another set of regulatory
definitions, creating inconsistencies and
further confusing the various programs
and their applicability and
requirements. The commenter provided
an example stating the higher flood risk
standard for certain applications
generated inconsistencies with the NFIP
and the countless State and local
regulations tied to the 1 percent annual
chance floodplain. With what the
commenter categorized as competing
floodplain definitions, the commenter
stated that Federal agencies, SLTTs, and
the public would be left wondering
which definition was the ‘‘real’’
definition—the climate-informed
science definition, the freeboard
definition, or the 0.2 annual chance
floodplain definition. The commenter
stated it would not always be clear
which definition to follow under
different circumstances and that while it
may be beneficial for more people to
understand their flood risk, the
regulatory uncertainty and
unpredictability of so many floodplain
definitions would only multiply.
FEMA Response: FEMA disagrees that
the framework to implement the FFRMS
will create a confusing inundation of
floodplain definitions—each of which
could be used differently depending on
the program and/or situation for which
it is being used and/or applied.
Consistent with current practice, FEMA
will continue to make the floodplain
determination as part of the action
taken, reducing the burden on
applicants in the process. As outlined in
the FFRMS Policy, FFRMS requirements
are consistent across FEMA’s programs
for those actions that are subject to the
FFRMS. FEMA does not anticipate
countless inconsistent floodplain
determinations resulting from the
implementation of this rulemaking for
FEMA’s programs as the appropriate
floodplain definition is clearly outlined
in the FFRMS Policy. FEMA notes that
while other Federal agencies have their
own implementing procedures for the
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FFRMS, FEMA will coordinate with
other agencies to avoid applying
conflicting standards on the same action
pursuant to Section H of the FFRMS
policy.
FEMA agrees with the commenter that
the majority of structures and facilities
subject to FEMA’s FFRMS
implementation will not be residential
in nature. FEMA does not believe the
commenter’s concerns are warranted
regarding expansion of the FFRMS’s
applicability. As explained above,
FEMA defines ‘‘action subject to the
FFRMS’’ as ‘‘any action where FEMA
funds are used for new construction,
substantial improvement, or to address
substantial damage to a structure or
facility’’ in this rulemaking, and the
FFRMS applies to grants for projects
funding the new construction,
substantial improvement, or repair of
substantial damage under FEMA’s grant
programs and does not extend to all
structures. FEMA’s final rule is clear
that FFRMS is limited in applicability to
those Federally-funded actions.
Rather than bolstering the arguments
against utilizing the FFRMS, FEMA
believes the commenter’s statements
regarding the 1 percent AEP
demonstrate a need to update the
agency’s floodplain determinations
under part 9 to meet changing
conditions and better ensure Federal
investments are protected from flood
damage, and that the natural values of
floodplains are preserved. More than 45
years have passed since Executive Order
11988 and flooding continues to
increase 216 and impact Federal
investments.217 FEMA believes the
updates made to part 9 in this final rule
are an important step forward to
improve resilience and better protect
Federal investments from flood damage
than the standards set over almost a half
a century ago. FEMA disagrees with the
commenter that the FFRMS approaches
result in confusion for Federal agencies,
SLTTs, or the public. The FFRMS Job
Aid provides the methodology and
process for FEMA to determine the
FFRMS floodplain under each
approach, and FEMA’s FFRMS policy
explains how each approach will be
216 As a result of climate change, flood events are
on the rise. Climate change is increasing flood risk
through (1) more ‘‘extreme’’ rainfall events,’’ caused
by a warmer atmosphere holding more water vapor
and changes in regional precipitation patterns; and
(2) sea-level rise. See Rob Bailey, Claudio Saffioti,
and Sumer Drall, Sunk Costs: The Socioeconomic
Impacts of Flooding 3 and 8, Marsh McLennan
(2021).
217 Federal Budget Exposure to Climate Risk.
OMB Assessment found https://
www.whitehouse.gov/wp-content/uploads/2022/04/
ap_21_climate_risk_fy2023.pdf (last accessed Jan.
24, 2024).
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applied to specific actions based on the
type and criticality of the action
involved, the availability and
actionability of data, and equity
concerns. FEMA believes these
resources provide sufficient clarity for
implementation. To the extent
stakeholders have questions after
reviewing these resources, FEMA
intends to provide SLTT partners and
the public with additional resources to
assist them in applying for FEMAfunded assistance programs.
FEMA further disagrees with the
commenter that the agency’s FFRMS
policy approach is inconsistent with the
NFIP minimum standards and other
Federal, State, local, Tribal, and
territorial standards. Rather, the FFRMS
is generally a higher standard. Further,
§ 9.11(d)(6) of the final rule states a
more restrictive Federal, State, or local
floodplain management standard will be
applied if higher than the FFRMS.
FEMA believes the commenter’s
concerns regarding confusion between
different floodplain approaches are
unwarranted. The floodplain
determination in part 9 has always been
distinct from the NFIP minimum
floodplain management standards.
While FEMA understands that the
FFRMS approaches provide additional
optionality, the FFRMS policy helps
clarify which approach is applicable to
those actions subject to the FFRMS.
Comment: Another commenter stated
the application of the FFRMS should be
in progressive and adaptive fashion and
requested additional guidance on how
the FFRMS would be applied.
FEMA Response: As explained in
§ 9.5(a)(3), FEMA will apply the FFRMS
only to new FEMA-funded actions
involving new construction, substantial
damage, or substantial improvement for
which assistance is made available
pursuant to declarations under the
Stafford Act that are commenced on or
after the effective date of the final rule,
and new FEMA-funded actions
involving new construction, substantial
damage, or substantial improvement for
which assistance is made available,
pursuant to notices of funding
opportunity that publish on or after the
effective date of the final rule. Ongoing
projects will not be impacted by this
final rule.218 FEMA will continue to
218 Note that FEMA first partially implemented
the FFRMS by policy with respect to covered
projects in existing floodplains in its Public
Assistance and Hazard Mitigation Assistance
programs. See FEMA Policy 104–22–003, ‘‘Partial
Implementation of the Federal Flood Risk
Management Standard for Public Assistance
(Interim),’’ June 3, 2022 found at https://
www.fema.gov/sites/default/files/documents/fema_
fp-104-22-0003-partial-implementation-ffrms-painterim.pdf (last accessed Jan. 24, 2024) and FEMA
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56979
analyze the effectiveness of the agency’s
FFRMS policy as part of the FFRMS
implementation, and the policy will be
reviewed, revised, extended, and/or
rescinded within four years of the issue
date.
Comment: The same commenter
inquired as to how the final rule would
impact the current way FEMA-regulated
floodplains were handled during the
NEPA process.
FEMA Response: FEMA’s integrated
reviews under E.O. 11988 and NEPA are
unchanged by the final rule.
Compliance/Enforcement
Comments: Two commenters sought
clarification on how FEMA would
ensure compliance with the rule. One
commenter stated the rule did not
address how FEMA would ensure
compliance and enforcement of the
FFRMS. The commenter noted FEMA
would monitor and evaluate the
implementation of the FFRMS by
Federal agencies and recipients of
Federal funds but did not specify how
FEMA would do so. The commenter
asked FEMA to provide more
information and procedures on what
mechanisms FEMA would use to verify
that Federal actions complied with the
FFRMS, what consequences FEMA
would impose for non-compliance, and
how FEMA would handle disputes or
appeals regarding compliance. Another
commenter also stated the rule did not
include monitoring, evaluating, or
compliance.
FEMA Response: FEMA currently
leverages the 8-step process detailed in
44 CFR part 9 as the mechanism to
implement Executive Order 11988, as
amended and will continue to use the
8-step process to monitor and verify
compliance with the FFRMS. To
monitor and evaluate the
implementation of the FFRMS, FEMA
will continue to rely on step 8 of the 8step process. Step 8 of the process found
at 44 CFR 9.6(b)(8) requires FEMA to
review the implementation and postimplementation phases of the proposed
action to ensure that the requirements
stated in § 9.11 are fully implemented.
Oversight responsibility is integrated
into existing processes for each grant
program. For each approved action,
grant assistance is generally conditioned
to follow the requirements determined
Policy 206–21–003–0001, ‘‘Partial Implementation
of the Federal Flood Risk Management Standard for
Hazard Mitigation Assistance Program,’’ Dec. 7,
2022 found at https://www.fema.gov/sites/default/
files/documents/fema_policy-fp-206-21-003-0001implementation-ffrms-hma-program_122022.pdf
(last accessed Jan. 24, 2024). Some current FEMA
actions may be subject to these partial
implementation policies; however, those actions
would not be subject to this final rule or policy.
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during the 8-step process. FEMA is not
making changes to paragraph (b)(8) of
§ 9.6 in the final rule and will continue
to use the current process to ensure
compliance with the FFRMS. To
address commenters’ concerns regarding
how the agency would address noncompliance, FEMA will rely on the
provisions of 2 CFR part 200. 2 CFR
200.339 also allows FEMA to take action
to remedy a recipient’s noncompliance
with federal requirements, including
those required by 44 CFR part 9, such
as imposing new conditions on the
award or deobligating funding for the
award if a recipient does not adhere to
the requirements set forth during the
part 9 review process. Disputes
regarding compliance would follow the
specific grant program’s appeals
process.219
Costs and Delays
Comments: Some commenters had
questions regarding the costs associated
with FFRMS implementation and
whether or not implementation would
result in delaying actions subject to the
FFRMS. Some of these commenters
raised specific concerns about increased
costs. One commenter stated there
would be a significantly increased cost
of compliance for Federally funded
projects as a result of the rule and stated
the Federal government should bear the
full cost of FFRMS implementation. The
commenter also asked whether the
FFRMS would be adopted for FEMA
funding only or for all Federal agencies
and whether the FFRMS would apply to
Federally funded projects that are
focused on flood damage reduction
projects. Another commenter stated the
FFRMS implementation, through higher
vertical elevation or floodproofing, or
other mitigation mandates, could
significantly alter and raise the cost of
water resource projects and ongoing
operations and maintenance for water
resources infrastructure systems, which
were paid for by the local taxpayers.
The commenter asked how the FFRMS
would interface with other Federal
agencies and impact non-Federal
sponsor responsibilities for projects. A
third commenter stated concern for the
increased costs of meeting heightened
standards and recommended FEMA
identify opportunities to expand the
agency’s grants and otherwise reduce
local costs to help ensure the new
resilience standard did not prevent
projects from going forward.
Two commenters raised concerns
regarding equity and costs. One
219 FEMA’s appeals and arbitrations process for
PA can be found at 44 CFR 206.206 and HMGP’s
appeals process can be found at 44 CFR 206.440.
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commenter stated the rule would
increase the costs of Federally-funded
projects and that while the higher
standards would help decrease costs to
the community and residents in the long
term, the higher short-term costs could
have the unintended effect of making
needed projects infeasible, especially for
communities of low-to middle-class
incomes and taxbases. This commenter
recommended FEMA work to increase
funding to implement FFRMS through
increasing grant funding cap ceilings,
expanding funding opportunities, and
lowering cost share requirements.
Another commenter stated both the rule
and FFRMS policy would potentially
raise costs associated with Federal
actions and implement ambiguous
standards ill-suited to rural areas. The
commenter stated the rule and FFRMS
policy raised design standards for
Federal actions, which would affect
mitigation and public assistance
projects for post-disaster recovery. The
commenter stated the elevated design
standards would increase project costs
and these increased costs would be
absorbed into applications and
proposals for these projects. The
commenter wrote that these projects
already had limited available funding
and were often prohibitively
competitive for rural communities,
creating an additional burden on these
applicants.
FEMA Response: FEMA appreciates
the commenters’ concerns on the
increased costs of projects and the
commenter’s requests to expand grant
funding and grant funding caps, as well
as lowering cost-share requirements.
The cost of compliance with the FFRMS
will be included in the total project
costs and will be funded at each
program’s applicable cost-share. Some
FEMA programs are capped in funding
each year, thus, the additional costs of
FFRMS requirements would not add to
the total funding for these programs.
The effects of the FFRMS requirements
would be distributional within the
existing funding caps and would not
constitute new spending by FEMA. For
disaster programs where funding is not
capped, the application of the FFRMS
will increase the total amount of
funding provided under the program,
and each project will be subject to the
applicable cost-share. Cost-share
requirements are determined consistent
with specific grant program
requirements.
As explained above, the FFRMS is
only applicable to actions involving the
use of Federal funds for new
construction, substantial improvement
or to address substantial damage to a
structure or facility. This rulemaking is
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applicable only to FEMA-funded
projects for FEMA programs such as IA,
PA, and HMA, and grants processed by
FEMA’s GPD. This includes some flood
damage reduction projects.
FEMA has always incorporated social
concerns and economic aspects into the
8-step process as part of the
practicability analysis. FEMA’s
revisions to part 9 reflect consideration
of the type and criticality of the action
involved, the availability and
actionability of the data, and equity
concerns in the implementation of
Executive Order 11988, as amended.
FEMA also has an agency-wide
initiative focused on reducing barriers
and increasing opportunities so all
people, including those from vulnerable
and underserved communities, can get
help when they need it.220 FEMA
reviews all proposed FEMA-funded
actions for potential disproportionate
and adverse human health and
environmental effects on communities
with environmental justice concerns
using a standardized environmental
justice compliance review process.
FEMA disagrees with the
commenter’s suggestion that the FFRMS
is ill-suited to rural areas, as disasters
impact all areas and flooding continues
to increase across the United States,
including in rural areas.221 Rather, these
areas can benefit from Federal
investments that are more resilient to
flooding. FEMA believes the FFRMS
will ensure that Federal funding will
result in more resilient rural
communities, without overly burdening
these communities as they seek to
recover. While FEMA acknowledges
some of the agency’s grant programs
have cost share requirements and that
competition exists for FEMA funding,
the agency has programs in place to
assist rural and other disadvantaged
communities.222
220 See https://www.fema.gov/emergencymanagers/national-preparedness/equity (last
accessed Jan. 24, 2024).
221 Information on FEMA disaster and other
declarations, see https://www.fema.gov/disaster/
declarations (last accessed Mar. 27, 2024). For
FEMA disaster and other declarations specific to
the commenter, see https://www.fema.gov/disaster/
declarations?field_dv2_declaration_date_
value%5Bmin%5D=2019&field_dv2_declaration_
date_value%5Bmax%5D=2024&field_dv2_
declaration_type_value=All&field_dv2_incident_
type_target_id_selective=All&field_dv2_state_
territory_tribal_value%5B%5D=MT (last accessed
Mar. 27, 2024).
222 For example, see FEMA, Press Release, BidenHarris Administration Announces Nearly $2 Billion
in Available Funding to Increase Climate Resilience
Nationwide, https://www.fema.gov/press-release/
20231012/biden-harris-administration-announcesnearly-2-billion-available-funding (last accessed
Mar. 27, 2024) (‘‘As part of the Administration’s
Justice40 initiative, the BRIC and FMA programs
aim to deliver 40 percent of their overall benefits
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Comment: Two commenters stated
concerns with delays. One commenter
stated concerns with project delays
regarding FEMA making the final
decision on the information the
applicant would use and making the
final decision on how permitting
agencies were processing and permitting
federal actions. Another commenter
raised similar concerns regarding
permitting, stating the proposed rule
and policy would create separate
permitting standards for some Federal
and non-Federal actions, adding
complexity that necessitated additional
expertise when administering local
floodplain programs and
disproportionately impacting rural
communities that already lacked
sufficient staffing and funding to
administer these programs. This
commenter also stated the proposed rule
and policy would also lengthen project
timelines for Federal actions. The
commenter stated that FEMA making
the decisions on both the information
the applicant is using and how
permitting agencies would process and
permit Federal actions. The commenter
stated this would add time,
documentation, and coordination
between local communities, project
proponents, stakeholders, and even
FEMA, for critical mitigation projects
and urgent post-disaster recovery efforts
that required expedience. The
commenter requested that FEMA
minimize red tape and expense for
communities seeking to implement
projects, as the proposed rule adds
bureaucracy and increases the resources
required to successfully implement
meaningful projects.
Another commenter raised concerns
regarding both costs and delays,
requesting further clarification on
whether the FFRMS allowed for FEMA
funding to cover expenses associated
with making necessary improvements
and enhancements to roadways, bridges,
and culverts or if the funding was only
for the in-kind replacement of
to disadvantaged communities that are
marginalized, overburdened by pollution, and
underserved . . . FEMA is providing up to 90
percent federal cost share for FMA in disadvantaged
communities, relative to a standard cost share of 75
percent. Designated Community Disaster Resilience
Zones (CDRZs) are eligible for up to 90 percent
federal cost share for BRIC, relative to a standard
cost share of 75 percent . . . FEMA continues to not
require a Benefit-Cost Analysis as a condition to
apply for an Economically Disadvantaged Rural
Community, federally recognized tribal
government, or a subapplicant with a hazard
mitigation project within or primarily benefiting a
Community Disaster Resilience Zone. FEMA will
review the hazard mitigation project
subapplications that are eligible for selection and
may assist such communities with developing a
BCA.’’).
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structures. The commenter stated
additional funding should be
considered for the delay in project
delivery due to the application of the
FFRMS.
FEMA Response: FEMA appreciates
the commenters’ concerns regarding
project delays and costs. FEMA notes
the determination on the information
the applicant is using under part 9 has
always been made by the agency and
thus, FEMA does not anticipate
administrative delays with projects as a
result of that aspect of FFRMS
implementation. The time taken to
complete the 8-step process will be
project specific. Additional time,
documentation, and coordination may
be necessary for projects subject to the
FFRMS (i.e., actions that involve new
construction, substantial damage, or
substantial improvement as they are
typically the most complex types of
actions that FEMA funds). As part of the
final rule, FEMA adjusted for inflation
certain thresholds that determine which
actions are exempt from, or subject to,
an abbreviated 8-step process. FEMA
will also establish a procedure for future
annual adjustments of these thresholds.
The thresholds enable FEMA to exempt
or expedite the requirements of 44 CFR
part 9 by streamlining the process for
those actions that offer little opportunity
for alternate locations or actions, or
minimization, due to practicability.
These changes may mitigate, as to
smaller projects, timing concerns raised
by the commenters.
Regarding permitting actions, FEMA
will provide additional guidance for the
public and SLTT partners identifying
what the FFRMS is, and how the agency
will implement the updates to part 9 to
assist applicants for FEMA-funded
assistance programs. FEMA’s regional
offices will also provide technical
assistance as part of the rule’s
implementation. For those SLTT entities
that may be permitting actions, as
explained above, FEMA’s role under 44
CFR part 9 has not changed with this
rule. The changes made in this final rule
are to implement updates to Executive
Order 11988, as amended, and to
otherwise update the 8-step process.
Changes related to the floodplain
determination implementing the FFRMS
will only be applicable to those actions
subject to the FFRMS as defined in the
rule. FEMA notes this final rule does
not apply to a local community’s
permitting processes under the NFIP’s
floodplain management regulations.
Those regulations are found at 44 CFR
part 59 et seq.
FEMA understands the final
commenter’s concerns regarding
applicability of this rulemaking to
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56981
improvements and enhancements to
roadways, bridges, and culverts, as well
as in-kind replacement of structures. In
each scenario presented by the
commenter, FEMA’s funding is based on
actual project costs for any FEMAfunded project. FEMA understands that
any project may be delayed due to a
variety of factors, and increased costs
associated with those delays are
generally part of the actual project costs.
Additional costs incurred to comply
with FFRMS would be eligible for
FEMA funding.
Timing
Comment: Two commenters
commented on the timing for
implementing the rule. One commenter
stated concern that the proposed
changes could significantly restrict
ongoing work. The commenter stated
the proposed rule and policy did not
identify when it would become
effective, or how it would affect projects
related to ongoing recovery efforts. The
commenter requested the effective date
be clarified and implemented so as to
not disrupt ongoing recovery efforts.
The other commenter requested FEMA
consider ‘‘grandfathering’’ clause
similar to the one provided in Executive
Order 11988.
FEMA Response: FEMA is issuing this
final rule with an effective date of
September 9, 2024. As explained in
§ 9.5(a)(3), FEMA will apply the FFRMS
only to new actions for which assistance
is made available pursuant to
declarations under the Stafford Act that
are commenced on or after the effective
date of the final rule, and new actions
for which assistance is made available
pursuant to notices of funding
opportunity that publish on or after the
effective date of the final rule. Ongoing
projects will not be impacted by this
final rule.223 FEMA does not believe a
grandfathering clause is needed for this
rulemaking.
223 Note that FEMA first partially implemented
the FFRMS by policy with respect to covered
projects in existing floodplains in its Public
Assistance and Hazard Mitigation Assistance
programs. See FEMA Policy 104–22–003, ‘‘Partial
Implementation of the Federal Flood Risk
Management Standard for Public Assistance
(Interim),’’ June 3, 2022 found at https://
www.fema.gov/sites/default/files/documents/fema_
fp-104-22-0003-partial-implemetnation-ffrms-painterim.pdf (last accessed Jan. 24, 2024) and FEMA
Policy 206–21–003–0001, ‘‘Partial Implementation
of the Federal Flood Risk Management Standard for
Hazard Mitigation Assistance Program,’’ Dec. 7,
2022 found at https://www.fema.gov/sites/default/
files/documents/fema_policy-fp-206-21-003-0001implementation-ffrms-hma-program_122022.pdf
(last accessed Jan. 24, 2024). Some current FEMA
actions may be subject to these partial
implementation policies; however, those actions
would not be subject to this final rule or policy.
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Metrics
Comments: Two commenters
requested FEMA develop metrics for the
rule and policy implementation. One
commenter stated that creating metrics
was essential. The commenter noted
that the proposed policy outlined
objectives but lacked specific metrics to
gauge progress towards achieving them.
The commenter stated the absence of
suitable metrics guaranteed a transition
into subjective assessments, making it
impossible to balance trade-offs among
objectives. The commenter
recommended that FEMA establish
appropriate metrics to ensure objective
evaluation and avoid subjective
interpretations. The commenter
requested that FEMA include
measurable metrics in the policy
statement, allowing for a quantifiable
assessment of advancement toward
achieving well-defined and
substantiated objectives.
Another commenter agreed that the
policy statement establishes objectives
without setting metrics for measuring
progress towards those objectives. The
commenter wrote the proposal was
unbalanced, as it was confined almost
exclusively to restrictions on floodplain
occupancy and use, with no policy
objective promoting economic
development or even economic
development rationally constrained by
other considerations. The commenter
stated that it is difficult to understand
how the proposed regulation would be
useful given the proposal’s narrow focus
on constraints and restrictions. The
commenter wrote that although FEMA
stated that the FFRMS would promote
resilience, the NPRM apparently
reflected FEMA’s perspective that
economic development had no place in
resilience. The commenter
recommended that the proposal be
modified to establish the objective of
economic efficiency in floodplain use
and occupancy, while giving
appropriate weight to the constraints on
efficiency and development already
inherent in the policy statement. Similar
to the other commenter, this commenter
stated that the proposal should be
modified to express the metrics that
would be used in establishing
quantifiable progress toward clear and
supported objectives. The commenter
wrote that failing to establish
appropriate metrics assured the effort
would devolve into subjective
evaluations where trade-offs among
objectives became impossible.
FEMA Response: FEMA understands
the commenters’ concerns regarding
measuring the effectiveness of the rule
and policy; however, the agency
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disagrees that measurable metrics must
be included in the regulation or policy
to do so. FEMA disagrees that the
absence of such metrics will result in
subjective interpretations for the
effectiveness of the rule and policy, as
well as the FFRMS implementation for
each action. FEMA’s 8-step process and
the results of the process are
documented, and each applicant
receives this information as part of the
agency’s compliance process.224 FEMA
will evaluate the effectiveness of the
rule and policy as part of the agency’s
role in the IWG to reassess the FFRMS.
FEMA disagrees with the commenter
that the rule and policy do not consider
economic development. Consistent with
Executive Order 14030,225 the FFRMS
will prioritize Federal investment and
conduct prudent financial management
of Federal government resources to
mitigate climate-related financial risk,
while accounting for and addressing
equity considerations and economic
impacts. For individual actions, FEMA
identifies and evaluates practicable
alternatives to carrying out a proposed
action in floodplains or wetlands. In
determining the practicability of the
alternatives, social concerns and
economic aspects are considered in
§ 9.9. These requirements ensure that
FEMA’s approach to floodplain use
entails consideration of specific
community needs.
Finally, FEMA disagrees with the
commenter that the agency does not
consider economic development, as the
8-step process requires a practicability
analysis that considers factors including
economic aspects. FEMA thus does not
believe the agency needs to revise the
FFRMS policy’s principles or the rule’s
policy statements to ensure economic
aspects are considered.
Appeals Process
Comments: Three commenters
requested FEMA provide an appeals
process. Two commenters wrote there
was no viable process available to nonFederal entities to seek a review and
adjudication of decisions made under
the FFRMS. The commenters stated the
impacts of the FFRMS would not be
confined to the Federal government but
would have far-reaching impacts on
non-Federal public entities and the
private sector. The commenters noted
that Federal taxpayers should be
protected from a Federal standard likely
224 See Environmental Planning and Historic
Preservation Responsibilities and Program
Requirements, available at https://www.fema.gov/
sites/default/files/2020-07/fema_ehp_requirements_
2018.pdf (last accessed Mar. 27, 2024).
225 ‘‘Climate-Related Financial Risk,’’ 86 FR
27967 (May 20, 2021).
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to impose costs without being subject to
a benefits justification. The commenters
recommended an appeals process be
made available to non-Federal entities
to review and adjudicate decisions
made under the FFRMS. The third
commenter requested an appeals
process for communities that disagreed
with a determination using the FFRMS.
The commenters stated an appeals
process would provide transparency
and enable communities to have a voice
in these important decisions that
significantly impact them.
FEMA Response: FEMA does not
believe a separate appeals process is
required under part 9. FEMA conducts
the 8-step process collaboratively with
participation from applicants and grant
program staff, with applicants having
responsibility to provide information
and participate in the process.226 This
collaborative process allows for
resolution of disagreements and for
FEMA to provide technical assistance
on the requirements of 44 CFR part 9.
FEMA hopes to be able to resolve
disagreements during this process so
that a project may be made eligible.
However, if a grant applicant disagrees
with the application of the FFRMS and
is subsequently denied funding for the
project, the applicant should be able to
avail itself of FEMA’s existing appeals
processes for its grant programs.227
FEMA understands the commenter’s
concern regarding community
participation but believes the current 8step process sufficiently engages the
public. FEMA will continue to notify
the public at the earliest possible time
of the intent to carry out an action in a
floodplain or wetland and involve the
affected and interested public in the
decision-making process, as detailed
further in § 9.8. Further, communities
provide input into the floodplain
determination for part 9. Pursuant to 44
CFR 9.11(d)(6), if there is a more
restrictive Federal, State, or local
standard, it will be used. This includes
the use of local CISA data and methods
that have been adopted by a community
for use in floodplain management, as
long as such data results in a more
226 See
44 CFR 9.16, 9.17.
e.g., 2 CFR 200.339 and 200.342; see also
44 CFR 206.206 (appeals and arbitration process for
PA), 44 CFR 206.115 (appeals process for IA), 44
CFR 206.440 (HMGP and HMGP Post-Fire’s appeals
process); and ‘‘Hazard Mitigation Assistance
Program and Policy Guide,’’ pg. 211–216, 229–234,
240–241, and 247 available at https://
www.fema.gov/sites/default/files/documents/fema_
hma_guide_08232023_v1.pdf (last accessed April 2,
2024) (appeals process for HMGP, HMGP Post-Fire,
BRIC, and FMA), ‘‘Public Assistance Program and
Policy Guide, pgs. 39–41 available at https://
www.fema.gov/sites/default/files/documents/fema_
pappg-v4-updated-links_policy_6-1-2020.pdf (last
accessed Mar. 12, 2024).
227 See,
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restrictive standard. FEMA values
additional input from SLTT partners
and the public in the 8-step process.
Regarding cost concerns, FEMA
completed an analysis of the economic
impact of this rulemaking, and the
agency believes that the benefits of
preventing property damage and
potentially saving lives justify the costs
of the rule. These benefits are a result
of the improved protection of structures
and facilities due to increased elevation
and floodproofing standards in FEMA’s
implementation of the FFRMS. This rule
will help to ensure that Federal
investments are better protected from
flood damage, and that the natural
values of floodplains are preserved.
Other Implementation Concerns
Comments: One commenter requested
the rule require consideration of ways to
prevent groundwater contamination
when managing floodwater for use in
water supply storage. The commenter
suggested that the rule include
provisions to pretreat or avoid the
injection of ‘‘the first flush of
stormwater runoff (generally the first
runoff from 1.5 inches of rainfall),
which can contain potential pollutants.
The commenter also requested the rule
acknowledge that MAR-related activities
could be subject to other State and/or
Federal regulations. Another commenter
stated certain requirements for
minimum conveyance, storage, and
design criteria would be needed for all
regional projects and watershed projects
to ensure Federal funding eligibility
with FFRMS implementation.
FEMA Response: FEMA understands
the commenters’ concerns but disagrees
that any changes to the rule are required
to ensure consideration of these issues.
As previously explained, impacts are
considered during the 8-step process
including those referenced by the
commenters. These considerations are
not changing as part of this final rule
and will continue to be utilized by
FEMA when completing the analysis.
Further, Part 9 applies only to FEMA
actions, and the FFRMS applies only to
those actions where FEMA funds are
used for new construction, substantial
improvement, or to address substantial
damage to a structure or facility for
FEMA programs such IA, PA, and HMA,
and grants processed by FEMA’s GPD.
Where applicants seek FEMA funding
through these programs for the actions
the commenters reference, part 9
applies.
Regarding a need to adapt design
criteria, the FFRMS is a resilience
standard that is applicable to structures
and facilities. When considering design
criteria, and particularly in cases where
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elevation as a minimization measure
may not be feasible or appropriate for
facilities, the FFRMS floodplain,
determined according to the process
described in section C of the FFRMS
policy, establishes the level to which a
structure or facility must be resilient.
Resilience measures include using
structural or nonstructural methods to
reduce or prevent damage; elevating a
structure; or, where appropriate,
designing it to adapt to, withstand and
rapidly recover from a flood event. To
the extent practicable and in accordance
with applicable grant program
requirements, projects for facilities
located within a FFRMS floodplain
must be designed to help ensure
resilience against flooding up to the
flood elevation of the FFRMS
floodplain.
Comment: A commenter requested the
exception process for the FFRMS allow
for appropriate balancing of the
community’s overall public health and
safety priorities in project decisions.
The commenter gave an example of a
hospital being limited in making critical
improvements because of the cost to
incorporate the FFRMS as an example of
where the community’s overall wellbeing might be impacted.
FEMA Response: FEMA disagrees that
a separate exception process is needed
given the flexibility of the 8-step
process. For individual actions, FEMA
identifies and evaluates practicable
alternatives to carrying out a proposed
action in floodplains or wetlands. In
determining the practicability of the
alternatives, social concerns and
economic aspects such as those raised
by the commenter are considered in
§ 9.9.
FEMA will continue to notify the
public at the earliest possible time of the
intent to carry out an action in a
floodplain or wetland and involve the
affected and interested public in the
decision-making process, as detailed
further in § 9.8. FEMA values additional
input from SLTT partners and the
public in the 8-step process to help
ensure FEMA actions meet community
needs. FEMA notes any increased costs
are generally eligible for funding under
FEMA’s assistance programs subject to
cost share requirements.
2. Coordination With Other Federal
Agencies
Commenters had questions about how
FEMA would coordinate with other
Federal agencies when implementing
the FFRMS. Commenters raised
questions and concerns with how FEMA
would work with other Federal agencies
to implement the FFRMS and the
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interaction between the FFRMS and
other programs such as the NFIP.
Comments: Commenters requested
FEMA provide more information on
how FEMA would complete
coordination with other Federal
agencies. A commenter requested
clarification on how the agency would
coordinate with other Federal agencies,
and State and local governments to
ensure consistent implementation of the
FFRMS. One commenter asked how the
primary agency would be determined
and stated that many local agencies
would not have the capability and
capacity to navigate through different
federal agencies with differing
requirements for FFRMS
implementation. Another commenter
requested the proposed rule reconcile
which agency’s FFRMS procedures
would be applied for projects with more
than one Federal funding source. This
commenter stated the NPRM did not
provide a process to reconcile difference
in requirements from different agencies
and stated the differences between
agencies that have already published
FFRMS proposals. The commenter
requested FEMA assure harmonization
in the FFRMS criteria application across
the Federal government. One
commenter stated FEMA must also
account for the central role that SLTT
governments play in floodplain
management, including designing
climate resilience actions and
implementing regulations. The
commenter wrote consistent that
expectations and procedures would
benefit all sides by expediting
interagency coordination and reducing
confusion, delays, and accidental
noncompliance.
FEMA Response: FEMA understands
the concerns associated with consistent
application of the FFRMS, and FEMA’s
FFRMS policy provides details on how
FEMA will coordinate with other
agencies when implementing actions in
the same area as another Federal agency.
See Section H, page 9. Specifically,
FEMA’s FFRMS policy states that when
coordinating with other Federal
agencies, FEMA will generally default to
the FFRMS policy approach in FEMA’s
FFRMS policy, as appropriate. In
addition, per 44 CFR 9.11(d)(6), actions
must be consistent with the NFIP, as
well as any more restrictive Federal,
State, or local floodplain management
standards. Those floodplain
management standards may include a
more restrictive application of another
Federal agency’s FFRMS approach.
Additionally, FEMA’s interagency
consultative role in the broader
implementation of the FFRMS across
the Federal government, through the
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agency’s participation in the Interagency
Working Groups and the FIFM–TF helps
ensure consistent and effective
implementation across the Federal
government. FEMA’s work in that
context is intended to address the types
of concerns raised in the comment
regarding harmonizing application of
the FFRMS criteria across the Federal
government. Executive Order 11988, as
amended, further establishes the process
by which the FFRMS will be reassessed
in an interagency manner in
conjunction with the WRC, the MitFLG,
and the FIFM–TF. See Section 4(a) and
(b).
FEMA understands the concerns
raised by the commenters regarding
local capability and capacity, and the
agency will distribute additional
resources to SLTT partners and the
public identifying what the FFRMS is,
and how the agency will implement the
Executive Orders to assist applicants of
FEMA-funded assistance programs.
FEMA will also provide technical
assistance through the agency’s regional
offices to support the FFRMS
implementation. Additionally, FEMA
notes the agency does consider the
central role that SLTTs play in
floodplain management. FEMA
conducts the 8-step process
collaboratively with participation from
SLTT partners and grant program staff,
with responsibilities and requirements
for applicant participation in the 8-step
process outlined in the long-standing
requirements of 44 CFR 9.17. FEMA also
recognizes the role played by SLTTs in
setting floodplain management
standards for their communities.
Pursuant to 44 CFR 9.11(d)(6), a more
restrictive Federal, State, or local
standard will be used. FEMA believes
the final rule and FFRMS policy outline
consistent expectations and procedures
for application of the 8-step process,
minimizing confusion, delays, and
accidental noncompliance.
Coordination With Specific Agencies
Comments: Some commenters
encouraged FEMA to engage with
specific agencies when implementing
FFRMS. One commenter encouraged
FEMA to coordinate with other Federal
agencies, such as HUD, SBA, USDA,
DOE, DoD, to improve application and
effectiveness of national floodplain
standards. Another commenter
suggested Federal agencies, including
FEMA, NRCS, FWS, and others examine
the efforts of Federal agencies to restore
floodplains. The commenter stated their
understanding that even for Federal
agencies responsible for addressing
water, soil, and habitat concerns,
floodplain regulations are a significant
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barrier to restoration. The commenter
stated the review of floodplain
restoration efforts should not only cover
the multi-million-dollar projects, but
also include smaller-scale projects, as
there are plenty of opportunities for
small scale, impactful restoration
projects that become too costly when
implemented consistent with a
regulatory process.
Another commenter requested that
FEMA take a leadership role in tracking
floodplain development on a national
scale. The commenter stated there was
no meaningful Federal commitment to
track gains or losses in floodplain
functions in the same way wetlands are
tracked through the National Wetlands
Inventory. The commenter referenced
an estimate that 70 percent of the
nation’s floodplains had poor integrity
due to development and alterations that
limited floodplain functionality. The
commenter noted this estimate provides
a snapshot, but that it is essential to
have nationwide statistics that allowed
decision makers to understand and
communicate floodplain loss. The
commenter stated that floodplains are
not broadly recognized by the public or
decision makers for the valuable
benefits they provide, and the lack of
comprehensive, nationally-led data and
analysis for floodplain functions has
resulted in disjointed and unstable
efforts focused on policy, funding, and
communication in support of protecting
and restoring floodplains in the United
States, as well as a lack of data that
allows an analysis of the impact that
Executive Order 11988 has played. The
commenter requested that FEMA, as the
lead Federal agency charged with
implementing a national floodplain
management strategy, take a leadership
role in tracking loss of functional
floodplains as a component of the 8-step
process when implementing Executive
Orders 11988 and 13690. The
commenter encouraged FEMA to work
with HUD, the United States Geological
Survey, the USACE, and other Federal
agencies to track and quantify the
effectiveness of the Executive Orders in
avoiding floodplain development and
preserving and restoring the natural and
beneficial values of functional
floodplains.
FEMA Response: FEMA’s interagency
consultative role in the broader
implementation of the FFRMS across
the Federal government, through the
agency’s participation in the Interagency
Working Groups and the FIFM–TF helps
ensure consistent and effective
implementation. In this role, FEMA has
coordinated, and will continue to
coordinate, with other Federal agencies,
including those listed by the
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commenters, on the FFRMS. Executive
Order 11988, as amended, further
establishes the process by which the
FFRMS will be reassessed in an
interagency manner in conjunction with
the WRC, the MitFLG, and the FIFM–
TF.228 See Section 4(a) and (b).
For individual actions subject to the
FFRMS, FEMA will continue to
coordinate with other agencies to
expedite and unify the floodplain
management review process, as detailed
in the FFRMS policy. FEMA appreciates
the commenter’s concerns regarding
floodplain restoration, but notes that the
commenter’s request for multiple
Federal agencies to do a retrospective
review of their efforts to restore
floodplains is beyond the scope of this
rulemaking, which involves updates to
FEMA floodplain management
regulations to implement the FFRMS.
FEMA’s regulations at part 9 address the
commenter’s concerns regarding the
need to protect floodplains. Specifically,
§ 9.2 discusses the agency’s policy to
‘‘restore and preserve the natural and
beneficial values served by
floodplains.’’ The final rule strengthens
this policy by requiring the use of
nature-based solutions when identified
as a practicable alternative during the 8step process as outlined in 44 CFR
9.9(b)(2). Further, § 9.11(b) discusses
how FEMA will take action to restore
and preserve floodplains and wetlands.
FEMA understands the need to include
smaller-scale projects and the
commenter’s concerns regarding costs
when complying with regulatory
requirements but believes the rule and
FFRMS policy helps address these
considerations. The rule and FFRMS
policy require FEMA to consider the
type of criticality of the action involved,
the availability and actionability of data,
and equity concerns. Actions are only
subject to the FFRMS if FEMA funds are
used for new construction, substantial
improvement, or to address substantial
damage to a structure or facility.
FEMA understands the commenter’s
concerns regarding tracking floodplain
development and the lack of a national
inventory for floodplains similar to the
National Wetlands Inventory. FEMA
agrees that nationwide statistics could
better support decision makers and
encourages other Federal agencies to
look across the spectrum of floodplain
impacts for their own agency activities.
However, FEMA has no statutory
authority to mandate the more
structured tracking system the
commenter requests across the Federal
government.
228 80
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FEMA completed that analysis for the
FFRMS consistent with its requirements
under OMB Circular A–4. FEMA
considered the costs and benefits
associated with this rule, including the
overall increased costs of FEMA
projects, in the regulatory impact
analysis provided on the public docket
for this rulemaking.229 FEMA believes
that the benefits of preventing property
damage and potentially saving lives
justify the costs of the rule. These
benefits are a result of the improved
protection of structures and facilities
due to increased elevation and
floodproofing standards in FEMA’s
implementation of the FFRMS. This rule
will help to ensure that Federal
investments are better protected from
flood damage, and that the natural
values of floodplains are preserved.
Pursuant to OMB Circular A–4,
agencies are required to monetize
quantitative estimates whenever
possible; however, if monetization is
impossible, the agency must explain
why and present all available
quantitative information. An agency
should also provide a description of the
unquantified effects and the strengths
and limitations of the qualitative
information. FEMA requested public
comments throughout the RIA because
it was aware of the limitations of the
data used to estimate the costs and
benefits of the rule. FEMA’s intention
was to give the public the opportunity
to submit data that was not available to
FEMA at the time of publication of the
NPRM but could help improve the
estimates made for the final rule.
FEMA recognized in both its NPRM
and RIA that there was a lack of
actionable climate data for the FFRMS.
FEMA expects that more data will be
available as agencies implement the
FFRMS, and that will be incorporated
into interagency tools. FEMA further
recognized that there was a limited
amount of data available on the
monetized benefits of freeboard that
would be affected by the rule and
requested comments from the public
about whether there was available data
that could be used for such estimates.
FEMA conducted a quantitative benefits
analysis for PA. Due to the limited
quantitative analysis, FEMA also
completed a qualitative analysis to meet
its obligations under OMB Circular A–
4 with respect to benefits by including
the following: (1) literature reviews on
the benefits of flood mitigation
activities; (2) reports which analyzed
potential savings from damage
avoidance associated with including
229 See
https://www.regulations.gov/document/
FEMA-2023-0026-0013.
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freeboard in the construction of new
residential structures in coastal areas at
various freeboard levels; and (3) a
description of qualitative benefits which
included the potential for lives saved,
savings in time and money from a
reduced recovery period after a flood,
increased safety of individuals,
increased public safety, reduced
personal and community impacts, and
reduction in future health issues related
to flooding.
With respect to the overall costs for
the rule, FEMA met its obligations
under OMB Circular A–4 by producing
qualitative and quantitative
measurements of the cost of the
application of the FFRMS by each grant
program. FEMA notes any increased
costs for FEMA actions are generally
eligible for funding under FEMA’s
assistance programs subject to cost share
requirements.
Comment: One commenter raised
several questions about the
implementation of FFRMS for
roadways, bridges, and culverts and
how FEMA would engage with other
Federal and non-Federal agencies. The
commenter raised several questions
about how the FHWA and the
Department of Transportation (DOT)
regulations would interact with FEMA’s
FFRMS implementation and requested
FHWA regulations apply to these
actions. The commenter raised
questions on the use of State regulations
and asked how the FFRMS would
impact scour calculations and designs.
The commenter asked how FEMA
would determine when a nature-based
approach would be used, stating that
FHWA and many States had their own
guidance for the use of nature-based
approaches. The commenter also stated
all of the FFRMS approaches indicated
higher vertical flood elevations and an
expanded horizontal floodplain and
inquired as to whether elevating a
structure would also include potential
roadway grade changes and raising a
bridge structure if viable for resilience
as some locations.
FEMA Response: As explained
previously, this rulemaking only applies
to actions where FEMA funds are used
for new construction, substantial
improvement, or to address substantial
damage to a structure or facility under
FEMA programs such as IA, PA, and
HMA programs, and grants processed by
FEMA’s GPD. FEMA does not fund
repairs or improvements to Federal-aid
roads, and this rulemaking would not be
applicable to those roads. Rather, as the
commenter states, the FHWA
regulations would govern those actions.
Where FEMA may provide funding,
FEMA’s FFRMS policy provides details
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on how FEMA will coordinate with
other agencies when implementing
actions in the same area as another
Federal agency. See Section H, page 9.
When coordinating with other Federal
agencies, FEMA will generally default to
the FFRMS policy approach in FEMA’s
FFRMS policy, as appropriate. Where
FEMA provides funding for these
activities, FFRMS applies to improve
resilience to facilities against both
current and future flood risks.
Section 9.11(d)(6) of the final rule
states that even when FEMA is
providing funding, a more restrictive
Federal, State, or local floodplain
management standard will be applied.
States with more restrictive standards
continue to govern these actions.
Section G.2 of FEMA’s FFRMS policy
further discusses flood risk
minimization for facilities and clarifies
that FEMA would allow any specific
method to be used to help ensure
resilience against flooding up to the
flood elevation of the FFRMS floodplain
in conjunction with any other
applicable codes and standards.
In response to the commenter’s
concerns regarding nature-based
approaches and conflicts with other
Federal and State requirements, Section
A.2 of FEMA’s FFRMS policy states
‘‘Applicability: The Natural Features
and Nature-Based Solutions
requirements of this policy apply to all
Actions subject to the full 8-step
decision-making process.’’ As explained
in Section F, it should be used where
possible.230
To address the commenters inquiry
on whether roadway grade changes and
raising a bridge structure would be
required, FEMA begins any analysis by
confirming applicability. As defined in
§ 9.4, a ‘‘structure’’ means walled and
roofed buildings, including a temporary
housing unit (manufactured housing) or
a gas or liquid storage tank. The
example provided by the commenter is
not a structure under part 9 but rather
a facility. As section G.2 of FEMA’s
FFRMS policy states, ‘‘[t]he FFRMS is a
resilience standard. Particularly in cases
where elevation may not be feasible or
appropriate for facilities, the FFRMS
floodplain, determined according to the
process described in section C of this
policy, establishes the level to which a
structure or facility must be resilient.
Resilience measures include using
structural or nonstructural methods to
reduce or prevent damage; elevating a
structure; or, where appropriate,
230 See Section F of the FFRMS Policy, ‘‘Where
possible, the Agency shall use natural systems,
ecosystem processes, and nature-based solutions.’’
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designing it to adapt to, withstand and
rapidly recover from a flood event.’’ 231
Coordination With Non-Federal
Agencies
Comments: A commenter
recommended FEMA engage through
comprehensive consultations with local
governments, non-Federal stakeholders,
and regional experts to gather insights
and refine the currently proposed
national approach to ensure that
policies aligned with regional
differences and addressed specific
challenges identified by stakeholders.
The commenter also recommended
FEMA develop a robust communication
strategy to clarify the integration of local
government systems and policy
implementation with non-Federal
stakeholders, while also creating a
means of providing feedback throughout
the FFRMS implementation process.
The commenter further stated that the
roles, responsibilities, and authorities of
non-Federal sponsors of actions might
not align with FEMA’s FFRMS proposed
policy and requested FEMA clarify how
non-Federal sponsors and other
stakeholders would engage with and be
affected by the rule. The commenter
noted collaboration between nonFederal sponsors, communities, the
USACE, and FEMA can yield significant
benefits, but stated the collaboration
was contingent on a clear, justified, and
achievable delineation of agency and
stakeholder roles and responsibilities.
The commenter stated the FFRMS
proposed rule and policy failed to
address the roles of non-Federal
stakeholders, which could significantly
hinder non-Federal stakeholders’
understanding of their responsibilities
within the FFRMS framework. The
commenter stated the FFRMS lacked an
explanation of how the policy aligns
with other floodplain-related policies.
The commenter stated that this
oversight might burden local nonFederal sponsors with additional
responsibilities related to addressing
property damage and new construction,
potentially creating confusion and
additional workload, and importantly,
likely forcing non-Federal sponsors to
assume duties outside their legal
authorities and core competencies, and
expose them to potential liability.
The commenter recommended that
FEMA provide greater clarity on the
roles of State and local government and
other non-Federal stakeholders. The
commenter requested that FEMA
consider and accommodate the resource
and legal boundaries of non-Federal
231 See https://www.regulations.gov/document/
FEMA-2023-0026-0005.
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stakeholders, ensuring that policies and
directives were realistic and compatible
with their authorities and available
resources and tailoring requirements
that align with the authorities of nonFederal stakeholders. The commenter
stated this entailed revising policies to
avoid mandating actions that fall
outside the legal jurisdiction of nonFederal stakeholders.
FEMA Response: FEMA disagrees
with the commenter that additional
engagement to refine the FFRMS is
required. In addition to the comment
period in 2023, FEMA completed
outreach regarding FFRMS in 2015 as
part of the development and publication
of the Revised Guidelines, as well as the
agency’s prior NPRM in 2016.232
FEMA understands the commenter’s
concern regarding the role of nonFederal partners, but that role in the 8step process remains unchanged as a
result of this rulemaking. FEMA values
the collaboration and coordination with
SLTT and other non-Federal partners in
the 8-step process and will continue to
engage with stakeholders and the public
throughout the 8-step process to meet
the needs of communities and
stakeholders impacted by FEMA actions
subject to this rulemaking. Specifically
for applicants for federal financial
assistance, 44 CFR 9.17 outlines the
specific roles and responsibilities that
exist for them in the 8-step process.
Comment: The same commenter
stated the rule lacked clarity on
integration with local government
systems and communications regarding
policy implementation with non232 Established by the 2013 Climate Action Plan,
the Climate Task Force met with stakeholders from
State, local, Tribal, and territorial governments;
private businesses; trade associations; academic
organizations; civil society; and other stakeholders
to develop and provide recommendations in
November 2014. President’s State, Local, and Tribal
Leaders Task Force on Climate Preparedness and
Resilience, Recommendations to the President,
(2014), available at https://obamawhitehouse.
archives.gov/sites/default/files/docs/task_force_
report_0.pdf at 7 (last accessed Jan. 24, 2024).
FEMA, acting on behalf of the MitFLG and
consistent with Executive Order 13690, published
a draft of the Revised Guidelines for notice and
comment on February 5, 2015 at 80 FR 6530. During
the public comment period, over 25 meetings were
held across the country with State, local, and Tribal
officials and interested stakeholders to discuss the
Revised Guidelines. There were also 9 public
listening sessions across the country that were
attended by over 700 participants from State, local,
and Tribal governments, and other stakeholder
organizations to discuss the Revised Guidelines.
The final Revised Guidelines were published on
October 22, 2015 at 80 FR 64008. FEMA published
a notice of proposed rulemaking to implement
FFRMS initially in 2016 at 81 FR 57402 (Aug. 22,
2016) along with a notice of availability and request
for comment on a FFRMS policy at 81 FR 56558
(Aug. 22, 2016) and a notice of availability
regarding a draft report at 81 FR 64403 (Sept. 20,
2016).
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Federal stakeholders. The commenter
stated this oversight raised doubts about
adaptability and alignment with existing
regional policies, potentially leading to
conflicts and inefficiencies in
implementation. The commenter raised
concerns regarding the removal of Flood
Hazard Boundary Maps (FHBM) stating
that the removal resulted in a lack of
clear alternatives or specific evaluation
methodologies tailored to different
regions and thus failed to ensure regionspecific evaluations and risks in
applying standards uniformly across
diverse regions. The commenter stated a
‘‘one-size-fits-all approach’’ overlooked
the complexity of regional flood
dynamics and other variabilities,
leaving critical questions unanswered.
The commenter stated a tailored,
regionally sensitive strategy was
imperative to ensure diverse regional
needs and variations were appropriately
considered and integrated into any
proposed policies.
FEMA Response: FEMA understands
the commenter’s interest in ensuring
effective integration with local
government systems and
communications with non-Federal
stakeholders but disagrees that the
agency’s rulemaking and FFRMS policy
are lacking. Rather, the rule at
§ 9.11(d)(6) ensures the use of any local
standard that may be higher than that
required under part 9 allowing for local
differences to be considered and
implemented. The commenter further
misunderstands FEMA’s edits to remove
the term FHBM from the regulatory text.
FEMA is not eliminating FHBMs from
the 8-step process. As explained in the
preamble to the NPRM, FEMA offers a
range of flood risk products under the
NFIP and categorizes these products as
‘‘regulatory’’ or ‘‘non-regulatory.’’
Regulatory flood risk products are
created subject to procedural due
process requirements, contain basic
flood information, and are used for
official actions such as identifying
properties subject to mandatory flood
insurance purchase requirements, or
enforcing minimum building standards
for construction in a floodplain in NFIP
participating communities. Nonregulatory flood risk products are not
tied to mandatory enforcement or
compliance requirements for the NFIP
and expand upon basic flood hazard
information. References to FEMA’s
regulatory products under the NFIP,
such as the FHBM, FIRM, and FIS are
being eliminated in the regulatory text
to allow flexibility to encompass the full
range of NFIP products (both regulatory
and non-regulatory) available for use
with the 8-step process. For example,
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the existing § 9.7(c) prescribes a
sequence of steps to obtain the
floodplain, flood elevation, and other
information needed.
FEMA has made, and will continue to
make, floodplain determinations
partnering with applicants in the 8-step
decision-making process. As explained
in the NPRM, FEMA will use best
available information, which may
include information that is nonregulatory or FEMA preliminary flood
hazard data. To be designated as the
best available information, the
information must be at least as
restrictive as the information provided
by effective FIRMs. FEMA published the
FFRMS Job Aid to further explain how
the agency will make these
determinations with the implementation
of FFRMS.
Further, as previously explained,
SLTTs can provide input into the
determination. As explained above,
FEMA will use a more restrictive
Federal, State, or local standard for
actions under part 9. This includes the
use of local CISA data and methods that
have been adopted by a community for
use in floodplain management, as long
as such data results in a more restrictive
standard. Allowing the use of local data
helps resolve the commenter’s concerns
that FEMA is not considering regional
flood dynamics and other variabilities.
3. Outreach
Comments: Two commenters
discussed outreach associated with the
rulemaking process. One of the
commenters expressed support for the
extensive public outreach completed
between 2015 and 2021 on the FFRMS.
The other commenter requested FEMA
reengage with States and local
communities on the FFRMS proposed
rule and policy. The commenter noted
the floodplain program is administered
at the local level and stated FEMA failed
to conduct sufficient outreach or even
hold a single public meeting to help
explain the elaborate and expansive
changes. The commenter stated local
administrators and community officials
deserved sufficient time to understand
the proposed rule and policy changes
and develop informed comments on
how it might affect their programs. The
commenter asked that FEMA perform
additional outreach to educate local
floodplain administrators, elected
officials, and emergency managers on
the proposed rule and policy.
Some commenters requested FEMA
provide additional outreach, training,
technical assistance, and community
engagement as part of the FFRMS
implementation. One commenter
requested training, outreach, and
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coordination at the program,
departmental, interagency, and
intergovernmental levels for successful
implementation of FFRMS. The
commenter requested FEMA provide
technical resources including
comprehensive guidance, maps and
resources, and technical assistance.
Another commenter requested FEMA
provide guidance and training materials
to stakeholders to ensure a
comprehensive understanding and
consistent application of the FFRMS.
One commenter requested FEMA
develop accessible guidance and tools to
facilitate and improve the benefit-cost
analysis for both nature-based solutions
and hybrid green-gray infrastructure
approaches. Another commenter
recommended FEMA conduct virtual
and in-person workshops and listening
sessions to explain the FFRMS, changes
to 44 CFR part 9 (including the 8-step
process), including applications for
FEMA grants under HMGP, FMA and
BRIC. Another commenter stated
appreciation for FEMA’s plans to assist
applicants with FFRMS and the 8-step
process and encouraged the agency to
seek sufficient funding to adequately
staff such an effort.
FEMA Response: As one commenter
noted, FEMA completed significant
outreach and stakeholder engagement
during the course of the FFRMS
development and rulemaking processes.
FEMA believes those outreach efforts
were sufficient and additional public
meetings for this rulemaking were not
required.233 FEMA disagrees with one
commenter requesting the agency
233 Established by the 2013 Climate Action Plan,
the Climate Task Force met with stakeholders from
State, local, Tribal, and territorial governments;
private businesses; trade associations; academic
organizations; civil society; and other stakeholders
to develop and provide recommendations in
November 2014. President’s State, Local, and Tribal
Leaders Task Force on Climate Preparedness and
Resilience, Recommendations to the President,
(2014), available at https://obamawhitehouse.
archives.gov/sites/default/files/docs/task_force_
report_0.pdf at 7 (last accessed Jan. 24, 2024).
FEMA, acting on behalf of the MitFLG and
consistent with Executive Order 13690, published
a draft of the Revised Guidelines for notice and
comment on February 5, 2015 at 80 FR 6530. During
the public comment period, over 25 meetings were
held across the country with State, local, and Tribal
officials and interested stakeholders to discuss the
Revised Guidelines. There were also 9 public
listening sessions across the country that were
attended by over 700 participants from State, local,
and Tribal governments, and other stakeholder
organizations to discuss the Revised Guidelines.
The final Revised Guidelines were published on
October 22, 2015 at 80 FR 64008. FEMA published
a notice of proposed rulemaking to implement
FFRMS initially in 2016 at 81 FR 57402 (Aug. 22,
2016) along with a notice of availability and request
for comment on a supplementary policy at 81 FR
56558 (Aug. 22, 2016) and a notice of availability
regarding a draft report at 81 FR 64403 (Sept. 20,
2016).
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complete additional outreach to allow
for public comment. Local
administrators and community officials
had an opportunity to submit comments
on the proposed rule and policy
changes, and FEMA notes some
communities did submit comments on
this rulemaking. FEMA will perform
additional outreach to SLTT partners,
stakeholders, and the public, including
distribution of additional resources to
assist in FFRMS implementation.
FEMA agrees that successful
implementation will require training,
outreach and interagency coordination
and appreciates the commenters’
suggestions on ways to achieve effective
outreach. FEMA participated in the IWG
on Flood Resilience to support the
implementation of the FFRMS. FEMA
continues to collaborate with the IWG
and other interagency groups consistent
with Executive Order 11988, as
amended, and the Revised Guidelines.
FEMA will distribute additional
resources to the public and SLTT
partners identifying what the FFRMS is,
and how the agency will implement the
Executive Orders, and these resources
will help applicants as they apply for
FEMA-funded assistance programs.
FEMA will also provide technical
assistance through the agency’s regional
offices in support of FFRMS
implementation. FEMA will also further
consider the outreach options shared by
the commenters as the agency begins
FFRMS implementation after this
rulemaking.
4. Equity and Environmental Justice
Comments: Commenters provided
feedback on incorporating equity and
environmental justice into the 8-step
process. While commenters indicated
support for FEMA’s rule and FFRMS
policy as a means of bolstering the
agency’s commitment to addressing
equity and environmental justice when
addressing flood risks, others requested
additional clarification or provided
recommendations on ways FEMA could
further advance equity and
environmental justice in the rule and
FFRMS policy. Commenters requested
the agency incorporate social, economic,
and environmental concerns into the 8step process. These commenters also
requested more outreach to underserved
communities and ways to address the
increased costs of actions subject to the
FFRMS.
One commenter stated that flood
impacts are not experienced equally
across communities in the United
States, referencing policies such as
redlining and lower tax rates as forcing
underserved populations into floodprone areas and resulting in those
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communities facing disproportionately
high risk from flooding. The commenter
stated these communities have also been
disproportionately impacted by the
environmental degradation resulting
from floodplain development,
underscoring the relationship between
floodplain management and
environmental justice. The commenter
stated underserved communities have
faced inequities in the distribution of
flood risk reduction resources, partially
because of reduced capacity and
opportunity to respond to flood hazards
compared to more well-resourced
communities. The commenter stated
that, based on these inequities, any
proposal to update floodplain
management standards would have an
outsized effect on underserved
communities. The commenter requested
that FEMA consider the implicit
connections between the FFRMS and
environmental justice and the potential
impact on Federally-protected treaty
rights to floodplain resources. The
commenter also requested FEMA
consider the long-term benefits—
including economic benefits—that can
result from stricter floodplain
management standards and upfront
investments to ensure more resilient
development projects.
This commenter further
recommended a regular environmental
justice and Tribal treaty rights
assessment to review unforeseen
burdens or missed opportunities with
environmental justice communities and
Tribal treaty rights-holders, consistent
with Justice40 after the rule takes effect.
The commenter requested FEMA
include a structure to ensure that Tribal,
low-income, and frontline communities
and communities of color would be
elevated in refining how the FFRMS is
used and updated over time. The
commenter requested FEMA explore
technical assistance opportunities to
ensure support for low-capacity
communities. The commenter requested
FEMA incorporate FFRMS into the
agency’s Justice40 efforts and prioritize
funding to Tribes and underserved
communities to increase flood
resilience, stating this prioritization was
particularly important in places where a
more protective standard for the
floodplain could raise upfront project
costs and impact affordability for lowincome communities, taxpayers, and
rate payers. Another commenter raised
similar concerns regarding equity,
environmental justice, and community
engagement. The commenter stated that
FEMA has the opportunity to explicitly
advance and promote environmental
justice within the rule and, consistent
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with Executive Order 14096, FEMA
should provide opportunities for the
meaningful engagement of persons and
communities with environmental justice
concerns who are potentially affected by
Federal activities. Quoting Executive
Order 14096, the commenter requested
FEMA provide timely opportunities for
members of the public to share
information or concerns and participate
in the decision-making processes; fully
consider public input provided as part
of the decision making processes; seek
out and encourage the involvement of
persons and communities potentially
affected by Federal activities; and
provide technical assistance, tools, and
resources to assist in facilitating
meaningful and informed public
participation. The commenter
recognized FEMA’s actions to
incorporate meaningful engagement
with environmental justice
communities, but requested FEMA
recommit to that engagement through
this rulemaking.
Two commenters recommended
FEMA revise the rule to ensure it
explicitly addresses environmental
justice concerns. One of these
commenters stated that despite FEMA’s
statement that the proposed rule would
not have adverse impacts on
communities with environmental justice
concerns, experience along with
scientific and policy analysis found that
Federal policies such as the FFRMS
would have distributional impacts
across sectors and communities,
especially overburdened and
underserved communities. The
commenter cited to specific studies
reflecting the level of flood risk increase
for some disadvantaged communities
and stated FEMA should ensure the
final rule advanced environmental
justice by requiring the consideration of
disproportionate and adverse effects on
communities with environmental justice
concerns. Another commenter stated
similar concerns with FEMA’s statement
in the proposed rule that the agency did
not expect the rule to have a
disproportionate and adverse human
health or environmental effect on
communities with environmental justice
concerns and requested FEMA
explicitly advance and promote
environmental justice considerations in
the final rule. The commenter stated
that equity and environmental justice
concerns must be acknowledged and
weighed in the analysis of all FEMAfunded projects. This commenter
requested guidance, tools, and resources
to ensure best practices are used in
project planning and design. The
commenter stated flood-prone land
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tended to be cheaper, disregarding
hidden long-term costs and
recommended FEMA strengthen
transparency in the public’s awareness
of flooding risks in any community
development and prioritize long-term
safety over initial cost savings. Another
commenter shared the concern raised by
these commenters that FEMA did not
consider environmental justice issues
when drafting the rule and
recommended FEMA actively promote
environmental justice in the final rule.
This commenter also referenced
Executive Order 14096 and stated that
climate-driven flood hazards were
expected to disproportionately impact
Black communities in the South. The
commenter further stated some
estimates indicated the Southeast stood
to suffer the most economic damage due
to climate change with incalculable
social costs. The commenter provided
additional statistics regarding flood
risks and referenced a specific seawall
project as an example of common
failures to adequately consider
environmental justice concerns in the
context of floodplain adaptation.
FEMA Response: FEMA appreciates
the commenters’ concerns on the
increased costs of projects, equity,
environmental justice, and community
engagement. FEMA is committed to
meaningful engagement on
environmental justice and understands
that flood impacts are not always
experienced equally across communities
in the United States. The agency has
always incorporated natural
environment, social concerns, and
economic aspects into the 8-step process
as part of the practicability analysis, and
this rulemaking will not change that
practice. FEMA’s revisions to part 9
reflect consideration of the type and
criticality of the action involved, the
availability and actionability of the data,
and equity concerns in the
implementation of Executive Order
11988, as amended. FEMA also has an
agency-wide initiative focused on
reducing barriers and increasing
opportunities so all people, including
those from vulnerable and underserved
communities, can get help when they
need it.234
FEMA reviews all proposed FEMAfunded actions for potential
disproportionate and adverse human
health and environmental effects on
communities with environmental justice
concerns using a standardized
environmental justice compliance
review process. This final rule will not
234 See https://www.fema.gov/emergencymanagers/national-preparedness/equity (last
accessed Jan. 24, 2024).
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change that process. As an
environmental justice review takes
place on all FEMA proposed actions,
FEMA does not believe an additional
assessment is needed in conjunction
solely with this final rule. Further,
FEMA and the applicant may consider
potential impacts on Tribal treaty rights,
where applicable, when evaluating the
practicability of alternatives in the 8step process. As this would occur for all
actions that potentially impact Tribal
treaty rights, FEMA does not believe an
additional assessment is needed in
conjunction with this final rule.
Regarding the commenter’s request
that FEMA provide a way for these
communities to engage on updates to
the FFRMS, FEMA notes the agency is
not solely responsible for revisions to
the FFRMS or the Revised Guidelines.
The MitFLG in consultation with the
FIFM–TF will reassess the FFRMS
annually, after seeking stakeholder
input, and provide recommendations to
the WRC to update the FFRMS, if
warranted based on accurate and
actionable science that takes into
account changes to climate and other
changes in flood risk. The WRC shall
issue an update to the FFRMS at least
every 5 years.235 Consistent with the
requirements of Executive Order 11988,
as amended, the interagency will engage
with SLTTs and the public, including
Tribal communities for any updates to
the FFRMS.
As noted by the commenter, there are
connections between the FFRMS and
environmental justice. The FFRMS
seeks to continue to improve the
resilience of communities, including
communities with environmental justice
concerns, and help preserve the natural
values of floodplains. Likewise, under
the 8-step process, FEMA and the
applicant may consider potential
impacts on Tribal treaty rights, where
applicable, when evaluating the
practicability of alternatives. FEMA
appreciates the commenter’s request to
consider economic benefits from stricter
floodplain management standards and
upfront investments, and the agency did
consider the costs and benefits
associated with this rule, including the
overall increased costs of FEMA
projects,236 in the regulatory impact
235 Revised
Guidelines, pg. 20.
example, FEMA found that for a project
with a 75% FEMA/25% applicant cost share, the
cost to an applicant to elevate a structure above the
BFE to meet FEMA’s FFRMS requirements using
the FVA+2 (1.91 percent of construction cost)
represented less than 0.5% of the total project cost,
or an average of an additional $4,775 in applicant
cost share on an original total project cost of
$1,000,000. See A Benefit Analysis of Increased
Freeboard for Public and Nonresidential Buildings
in Riverine and Coastal Floodplains, posted to the
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236 For
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analysis provided on the public docket
for this rulemaking.237 FEMA believes
that the benefits of preventing property
damage and potentially saving lives
justify the costs of the rule. These
benefits are a result of the improved
protection of structures and facilities
due to increased elevation and
floodproofing standards in FEMA’s
implementation of the FFRMS. This rule
will help to ensure that Federal
investments are better protected from
flood damage, and that the natural
values of floodplains are preserved.
Regarding the commenters’ concerns
that FEMA provide opportunities for
engagement and participation in the
decision-making process, FEMA
completed significant outreach in 2015
as part of the development and
publication of the Revised Guidelines.
That outreach included over 25
meetings across the country with State,
local, and Tribal officials and interested
stakeholders to discuss the Revised
Guidelines and 9 public listening
sessions that were attended by over 700
participants from State, local, and Tribal
governments, and other stakeholder
organizations to discuss the Revised
Guidelines.238 FEMA believes those
outreach efforts were sufficient.239
FEMA notes that, in addition to
engagement on the FFRMS and
rulemaking, FEMA’s 8-step process
incorporates community engagement
public docket of this rulemaking at https://
www.regulations.gov/document/FEMA-2023-00260003.
238 Public meetings were held at a range of
locations across the country at varied times to
maximize participation. Meetings were held in
Fairfax, VA; Seattle, WA; Dallas, TX; New York,
NY; Ames, IA; Biloxi, MS; Sacramento, CA; and
Hampton Roads, VA. See generally Guidelines for
Implementing Executive Order 11988, Floodplain
Management non-rulemaking docket available at
https://www.regulations.gov/docket/FEMA-20150006/document for the public meeting notices and
transcripts from the meetings.
239 Established by the 2013 Climate Action Plan,
the Climate Task Force met with stakeholders from
State, local, Tribal, and territorial governments;
private businesses; trade associations; academic
organizations; civil society; and other stakeholders
to develop and provide recommendations in
November 2014. President’s State, Local, and Tribal
Leaders Task Force on Climate Preparedness and
Resilience, Recommendations to the President,
(2014), available at https://obamawhitehouse.
archives.gov/sites/default/files/docs/task_force_
report_0.pdf at 7 (last accessed Jan. 24, 2024).
FEMA, acting on behalf of the MitFLG and
consistent with Executive Order 13690, published
a draft of the Revised Guidelines for notice and
comment on February 5, 2015 at 80 FR 6530. The
final Revised Guidelines were published on October
22, 2015 at 80 FR 64008. FEMA published a notice
of proposed rulemaking to implement FFRMS
initially in 2016 at 81 FR 57402 (Aug. 22, 2016)
along with a notice of availability and request for
comment on a supplementary policy at 81 FR 56558
(Aug. 22, 2016) and a notice of availability
regarding a draft report at 81 FR 64403 (Sept. 20,
2016).
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56989
into the process. FEMA will continue to
notify the public at the earliest possible
time of the intent to carry out an action
in a floodplain or wetland and involve
the affected and interested public in the
decision-making process, as detailed
further in § 9.8, as well as provide the
public notice with a statement
documenting the outcome of the 8-step
process as detailed in § 9.12. Beyond all
of the foregoing, FEMA also provides
public notice for proposed actions
under NEPA and other environmental
planning and historic preservation laws
and executive orders. This rulemaking
will not change those requirements.
Additionally, to further engage with
communities in the FFRMS
implementation, FEMA will distribute
resources identifying what the FFRMS
is, and how the agency will implement
the Executive Orders. These resources
will help applicants as they apply for
FEMA-funded assistance programs.
FEMA’s regional offices will also
provide technical assistance in support
of FFRMS implementation. FEMA
anticipates these resources could be
used in project planning and design, as
requested by one of the commenters.
Furthermore, FEMA has staff dedicated
to assisting with implementation of
environmental justice planning and
compliance, and will develop further
resources to assist in implementing
environmental justice requirements.
FEMA agrees with the commenters
that flood risk is not uniformly
distributed. However, the agency does
not believe changes to the regulatory
text or policy are required to help
ensure consideration of
disproportionate and adverse effects on
communities with environmental justice
concerns. FEMA currently reviews all
proposed actions in the 8-step process
to identify and address any
disproportionate and adverse human
health or environmental effects on
communities with environmental justice
concerns to advance environmental
justice. This process will not change as
a result of this rulemaking.
Additionally, through the 8-step
process, FEMA identifies impacts such
as the flooding risks associated with the
occupancy or modification of
floodplains and wetlands and the
potential direct and indirect support of
floodplain and wetland development
that could result from the proposed
action. FEMA understands the
commenter’s concerns regarding
potential hidden long-term costs of
flood-prone land purchases. FEMA
believes the agency’s flood risk mapping
efforts increase transparency in the
public’s awareness of flooding risks, and
the agency’s floodplain management
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programs further advance
understanding of the impacts of
development in floodplains.
FEMA appreciates the final
commenter’s information and example
of challenges of failing to consider
environmental justice concerns in
Federal projects. FEMA acknowledges
that the project described by the
commenter was not a FEMA-funded
project, but values the input provided
by the commenter on the challenges
faced when failing to consider
environmental justice. FEMA is
committed to meaningful engagement
on environmental justice and seeking
public input on proposed actions. As
explained above, FEMA seeks input
from the public as part of its reviews
under Executive Orders 11988, 11990,
12898 and 14096, as well as NEPA,
among other environmental planning
and historic preservation laws and
executive orders and has dedicated staff
and a commitment to additional
resources on environmental justice
specifically.
Comment: Three commenters
requested edits to the regulatory text to
advance environmental justice with two
suggesting specific edits. One
commenter requested FEMA revise
§ 9.2(d) to identify environmental
justice and avoid disproportionate
effects to communities with
environmental justice concerns as
policy priorities. Another commenter
requested FEMA revise § 9.6(b)(2) by
adding language consistent with HUD’s
proposed rule to state that ‘‘when the
proposed activity is located in or affects
a community with environmental
justice concerns under Executive Order
12898, public comment and decision
making under this part shall be
coordinated with consultation and
decision making under HUD policies
implementing 24 CFR 58.5(j) or 50.4(l).’’
The commenter also requested FEMA
revise the principles in the proposed
FFRMS policy to include a new
principle on environmental justice to
state that FEMA would work to reduce
adverse impacts on communities with
environmental justice concerns and
engage communities in decision-making
processes if the Federal action is a
concern to these communities. This
commenter requested FEMA revise
§ 9.11 to ensure FEMA would promote
mitigation and minimization measures
to address any disproportionate and
adverse flood risks affecting these
communities. Another commenter
requested FEMA revise § 9.10 to require
consideration of disproportionate and
adverse effects on communities with
environmental justice concerns,
whether direct, indirect, or cumulative.
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That commenter requested FEMA
encourage proactive community
engagement and community-led
planning within the final rule and
recommended FEMA reassess part 9 and
incorporate language to codify the
agency’s commitments to environmental
justice and community engagement.
FEMA Response: FEMA does not
believe the proposed edits to the
regulatory text or FFRMS policy are
necessary to address the commenters’
environmental justice concerns. As
explained above, FEMA has always
incorporated natural environment,
social concerns, and economic aspects
into the 8-step process as part of the
practicability analysis. FEMA’s
revisions to part 9 in this rulemaking
reflect consideration of the type and
criticality of the action involved, the
availability and actionability of the data,
and equity concerns in the
implementation of Executive Order
11988, as amended. FEMA also has an
agency-wide initiative focused on
reducing barriers and increasing
opportunities so all people, including
those from vulnerable and underserved
communities, can get help when they
need it.240 Further, as explained above,
FEMA reviews all proposed FEMAfunded actions for potential
disproportionate and adverse human
health and environmental effects on
communities with environmental justice
concerns using a standardized
environmental justice compliance
review process. This final rule will not
change that process.
FEMA does not believe the specific
changes requested to revise § 9.2(d) to
identify environmental justice and
avoid disproportionate effects to
communities with environmental justice
concerns as policy priorities are
necessary, given the agency’s
consideration of natural environment,
social concerns, and economic aspects
in the 8-step process and the agency’s
review of all proposed FEMA-funded
actions under Executive Order 12898
and 14096. FEMA further does not
believe specific regulatory text is
required to implement Executive Orders
12898 and 14096, as the agency already
implements these requirements through
other FEMA policies and processes.241
As with the changes requested to
240 See https://www.fema.gov/emergencymanagers/national-preparedness/equity (last
accessed Jan. 24, 2024).
241 See ‘‘Instructions on Implementation of the
Environmental Planning and Historic Preservation
Responsibilities and Program Requirements,’’ pgs. 4
and 15, available at https://www.fema.gov/sites/
default/files/2020-07/fema_ehp_instructions_
implementation_2018.pdf (last accessed Apr. 22,
2024).
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§ 9.2(d), FEMA does not believe that
adding an additional principle to the
FFRMS policy is necessary, given the
agency’s consideration of social
concerns, which may include equity,
and other factors under § 9.9(c), and
environmental justice reviews
conducted under Executive Orders
12898 and 14096 for proposed actions.
In § 9.11, FEMA details the
requirements when actions must be
located within or will affect a floodplain
or wetland. The provisions of that
section, as proposed, can be used to
address flood risks affecting
communities, including any
disproportionate and adverse flood
risks. FEMA is also required to address
any disproportionate and adverse
human health or environmental effects
of actions on communities with
environmental justice concerns, to the
greatest extent practicable and
permitted by law.
FEMA believes that the wording in
§ 9.10 is sufficient without further edits
to enable the Agency to identify
potential direct and indirect adverse
impacts associated with the occupancy
and modification of floodplains and
wetlands and the potential direct and
indirect support of floodplain and
wetland development that could result
from the proposed action. In Step 4,
FEMA considers a wide variety of
factors in identifying potential impacts
of an action that may be of relevance to
communities with environmental justice
concerns, including pollution, public
health, safety, and welfare, and
numerous others.
FEMA is not updating significant
portions of the public notice process in
this rulemaking with respect to public
comment and community engagement,
as FEMA does not believe the current
notice process is inadequate. However,
FEMA did update § 9.8(c)(4)(i) to
incorporate notice through the internet
or another comparable method. When
notice is provided electronically, FEMA
will also provide links to electronic
versions of relevant maps. FEMA will
continue to notify the public at the
earliest possible time of the intent to
carry out an action in a floodplain or
wetland and involve the affected and
interested public in the decision-making
process, as detailed further in § 9.8.
K. Emphasis on Nature-Based
Approaches
1. General Support
Comments: Several commenters
expressed specific support for FEMA’s
revisions to part 9 and the FFRMS
policy to further incorporate naturebased solutions into the 8-step process.
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Commenters stated that the emphasis on
natural features and nature-based
approaches was important as these were
innovative, sustainable solutions and
aligned with other Federal, State, and
local goals. Commenters requested
FEMA implement these changes as soon
as possible. Some commenters also
requested that FEMA develop additional
resources for nature-based solutions.
One commenter recommended that
FEMA require consideration of nature
and nature-based approaches early in
the 8-step process. The commenter
stated that doing so was critical to
protecting floodplain values,
minimizing impacts to natural areas,
ESA-listed species, and Tribal treaty
rights, and effectively building
resilience to flood impacts. The
commenter requested that FEMA
consider nature-based solutions in step
2 during public notice and that FEMA
continue to provide and publish the best
examples of where nature-based
approaches were applied and led to
flood risk reduction benefits. A
commenter, while supporting FEMA’s
requirement to use natural features and
nature-based approaches where
possible, recommended that FEMA
clearly assert the criteria that would
satisfy the use of natural features and
nature-based approaches either in the
final rule or additional guidance.
FEMA Response: FEMA appreciates
the commenters’ discussion of the
importance of natural features and
nature-based approaches and agrees that
it is important to implement these
changes with this final rule in a swift
manner. FEMA’s policy will be
reassessed on a four-year cycle to ensure
the approach continues to meet the
goals of Executive Order 11988, as
amended.
Regarding the commenter’s request for
consideration of nature-based solutions
early in the 8-step process, FEMA’s
process at step 2 is to solicit any
pertinent input from the public after the
location determination for the proposed
action and before the agency has made
any decisions regarding practicable
alternatives. Step 2 allows the public to
provide information on potential
alternatives, including nature-based
solutions. FEMA notes the proposed
action in step 1 may also incorporate
nature-based approaches, which the
public can comment on in step 2. FEMA
does not believe the language of the
regulatory text needs revision to address
the concerns raised by the commenter as
the agency’s practice already
incorporates the process outlined.
FEMA’s FFRMS policy provides more
information on the criteria to satisfy the
use of natural features and nature-based
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approaches. FEMA plans to provide
resources that will incorporate
additional examples of nature-based
approaches and will coordinate with
other Federal agencies regarding the use
of nature-based solutions as part of the
FFRMS implementation and beyond.
FEMA will distribute these and other
resources for the public and SLTT
partners to help applicants for FEMAfunded assistance programs. FEMA’s
regional offices will also provide
technical assistance in support of the
final rule’s implementation.
2. Implementation of Nature-Based
Solutions
Comment: A commenter requested
FEMA further amend part 9 to clarify
that that nature-based solutions must be
considered in all cases, and
documentation should be provided
where such approaches were ultimately
found to be not practicable.
FEMA Response: FEMA believes that
the final rule addresses the commenter’s
concerns as nature-based solutions must
be considered in all instances where
alternatives can be considered in the 8step process. FEMA’s procedures for
review of its actions under part 9
include documenting the 8-step process
and will incorporate documentation of
nature-based solution consideration as
part of that process.
Comments: Two commenters
requested FEMA remove ‘‘where
appropriate’’ under Step 5, proposed
§ 9.6(b)(5), which stated that FEMA
would integrate natural systems,
ecosystem services, and nature-based
approaches ‘‘where appropriate.’’ In
contrast, two commenters requested
FEMA recognize situations where
nature-based solutions would not be
appropriate. A commenter wrote
because Executive Order 11988, as
amended, recognized nature-based
approaches were not always possible or
practical, that FEMA’s rule must
recognize situations where nature-based
approaches were infeasible. The
commenter stated that while naturebased approaches might be preferred,
they might not always provide the
optimal or even the most cost-effective
solutions and recommended that FEMA
incorporate language into part 9
requiring the agency to recognize the
role of State and local agencies in
ultimately approving nature-based
approaches for addressing impacts to
wetlands and floodplains when
determining the practicability of the
alternatives set out. Another commenter
stated while nature-based and hybrid
approaches could be prioritized, they
may not be feasible to protect all
infrastructure.
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FEMA Response: The language
‘‘where appropriate’’ is important, as
not all actions can integrate natural
systems, ecosystem services, and naturebased approaches. FEMA funds a range
of actions, and not all of those actions
can utilize nature-based approaches. For
example, FEMA funds structure repairs,
and those types of repairs generally
could not utilize a nature-based
approach as an alternative.
FEMA’s regulation and policy require
the incorporation of nature-based
approaches into the development of
alternative actions to the extent
possible, consistent with Executive
Order 11988, as amended. In addition,
FEMA’s FFRMS policy clarifies that
nature-based approaches can also be
incorporated as minimization measures
where they are not possible as a
practicable alternative. However,
nature-based approaches will only be
implemented where appropriate.
Nature-based approaches are subject to
the practicability analysis which relies
on the factors identified in § 9.9(c).
Those factors include legal constraints
such as where state or local law is
conflicting. For an alternative to be
considered practicable, it must meet the
need of the action FEMA is taking.
Additionally, § 9.11(d)(6) requires
FEMA to utilize any higher Federal,
State, or local standards in the 8-step
process.
Nature-based solutions apply to any
FEMA-funded action that requires an
analysis of alternatives, not just those
that are subject to the FFRMS (new
construction, substantial damage, or
substantial improvement). The FFRMS
applies to grants for certain projects
under FEMA programs such as IA, PA,
and HMA programs, and grants
processed by FEMA’s GPD. All Federal
agencies will utilize the Revised
Guidelines for their own FFRMS
implementation.
Additionally, FEMA disagrees that
additional language is required in part
9 to recognize the role of State and local
agencies in the process for determining
when nature-based solutions may be
practicable for a particular action.
FEMA conducts the 8-step process
collaboratively with participation from
SLTT partners and grant program staff,
with responsibilities and requirements
for applicant participation in the 8-step
process outlined in the long-standing
requirements of 44 CFR 9.17. FEMA will
work with SLTTs to determine what
practicable alternatives may exist,
including nature-based solutions.
Comment: A commenter
recommended that FEMA apply naturebased approaches beyond the
practicable alternatives analysis. The
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commenter stated that the underlying
assumption of the proposed rule was
that nature-based approaches offered an
alternative to reduce the effects of a
traditional development project. While
supporting the requirement to avoid
floodplains and wetlands impacts, the
commenter requested the rule also
acknowledge that floodplains and
wetlands restoration is an important
flood risk reduction strategy in its own
right. The commenter stated that
Federal, State, and non-profit entities
are focused on restoration efforts and
that their investments are needed to
accelerate the use of nature-based flood
risk reduction strategies such as wetland
and floodplain restoration. The
commenter acknowledged that some of
their comments may be outside the
scope of the rulemaking, but stated that
they submitted such comments because
floodplain regulations and management
are critical to whether we have more,
less, or an indifferent amount of federal
investments in nature-based approaches
to floodplain restoration across the
nation. The commenter stated that the
nation desperately needs more
floodplain restoration if we’re going to
move from reacting to disasters to being
proactive and delivering on the
multitude of co-benefits that healthy
floodplains provide.
FEMA Response: FEMA appreciates
the commenter’s concerns but as
explained in the preamble to the NPRM,
44 CFR part 9 only applies to FEMA
actions. The FFRMS applies to grants
for projects under FEMA programs such
as IA, PA, and HMA, and grants
processed by FEMA’s GPD. All Federal
agencies have their own requirements to
implement the 8-step process and will
utilize the Revised Guidelines for their
own FFRMS implementation.
FEMA values the commenter’s focus
on the importance of nature-based
approaches and will integrate these
approaches where appropriate in
actions under the 8-step process. FEMAfunded actions largely are identified by
State and local applicants who design
projects to meet their own communities’
needs, which may include floodplain
and wetland restoration. However,
FEMA’s mission extends beyond these
actions, and the agency cannot
eliminate the need to consider other
types of actions such as the repair and
replacement of public structures and
facilities, such as schools and roadways.
When evaluating such actions, FEMA
will consider the practicability of
nature-based approaches consistent
with this rule.
Comment: One commenter also stated
support for FEMA’s use of nature-based
solutions in the rule but stated the lack
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of examples and lack of a clear
hierarchy when choosing among
available solutions could diminish the
impact of the agency’s requirement. The
commenter recommended FEMA
require that alternatives protect and/or
restore natural features and ecosystem
processes to the maximum extent
possible before resorting to other means;
that nature-based approaches be
incorporated to the maximum extent
possible after maximizing protection
and/or restoration of natural features
and ecosystem processes; and allowing
use of grey infrastructure only after
nature-based options were deployed to
the maximum extent possible. Another
commenter wrote that where avoidance
was not possible, landscape-level
resilient design including green
infrastructure and nature-based
solutions should be incorporated
meaningfully, even for activities that
may not adversely impact floodplain
function, to benefit and improve the
resilience of surrounding communities.
A third commenter recommended
FEMA encourage and incentivize higher
functioning nature-based approaches on
acquired properties, stating that
mitigation project applicants were often
encouraged to simply grade and seed a
parcel leaving ongoing maintenance
concerns with only a minimal natural
benefit. This commenter also requested
that FEMA require documentation on
the nature-based approaches considered
and justification for the inclusion or
exclusion. Finally, another commenter
recommended that FEMA incorporate
more information on when and why
nature-based solutions would be
appropriate alternatives to consider in
Steps 3 and 6 and highlight best
practices, such as wetlands
preservation. The commenter added that
part 9 should more specifically and
clearly promote these approaches to
ensure that FEMA consistently
identified and pursued opportunities to
restore natural and beneficial floodplain
functions within or near the project site
as a part of potential risk mitigation
strategies. The commenter
recommended FEMA add a subsection
to § 9.11 discussing the benefits of these
measures and specifying approaches
that could be incorporated into project
plans.
Two commenters recommended
FEMA revise § 9.9(b)(2) to specifically
identify wetlands restoration and
preservation as a uniquely valuable
complement or alternative to grey
infrastructure. Another commenter
requested FEMA incorporate stronger
language on when and how to apply
nature-based solutions and to highlight
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best practices, such as wetlands
preservation.
FEMA Response: FEMA does not
believe the final rule requires revision.
FEMA’s actions are focused on
protection of life, safety, and improved
property and FEMA does not typically
fund actions that solely protect natural
features and ecosystems. As such,
FEMA is not necessarily taking actions
where alternatives to protect natural
features and ecosystem processes to the
maximum extent possible are
appropriate before resorting to other
means. FEMA believes the commenter’s
concerns regarding wetlands
preservation are already addressed in
this final rule. Wetland conservation
and restoration would be included
under natural systems, ecosystem
processes, and nature-based approaches
provided in § 9.9(b)(2) as amended in
this final rule. Additionally, the existing
practicability factors set forth in § 9.9(c),
including the natural environment
factor, is sufficient to address the
commenter’s concerns.
FEMA prefers not to limit the
regulatory text and instead provide
additional information through FFRMS
implementation resources to address the
commenter’s concerns. As explained
above, the FFRMS policy does provide
more information on the criteria to
satisfy the use of natural features and
nature-based approaches and FEMA
plans to provide additional resources.
These resources will incorporate
additional examples of and information
on nature-based approaches, such as the
value of Indigenous knowledge and
Traditional Ecological Knowledge
(TEK). Where both a nature-based
solution and a grey infrastructure
solution are practicable, FEMA plans to
generally prioritize the nature-based
solution over a grey infrastructure
solution as the commenter recommends.
In addition, FEMA’s FFRMS policy
clarifies that nature-based approaches
can also be incorporated as
minimization measures where they are
not possible as a practicable alternative.
Further, as explained above, FEMA’s
procedures for review of its actions
under part 9 include documenting the 8step process and will incorporate
documentation of nature-based
solutions considered as part of that
process. FEMA will distribute
additional resources for the public and
SLTTs as detailed above to further assist
applicants when applying for FEMA
programs.
Comment: Another commenter asked
how FEMA would determine when
nature-based solutions should be used.
The commenter stated the FHWA and
many State DOTs were developing or
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had developed their own guidance for
these items for riverine and tidal
environments and that those agencies
should be allowed to use their policies
to fit specific projects.
FEMA Response: FEMA appreciates
the commenter’s concerns but as
explained in the preamble to the NPRM,
44 CFR part 9 only applies to FEMA
actions. The FFRMS applies to grants
for projects under FEMA programs such
as IA, PA, and HMA, and grants
processed by FEMA’s GPD. All Federal
agencies have their own requirements to
implement the 8-step process and will
utilize the Revised Guidelines for their
own FFRMS implementation.
FEMA’s approach for facilities is
meant to be flexible. As section G.2 of
FEMA’s FFRMS policy states ‘‘[t]he
FFRMS is a resilience standard . . .
Resilience measures include using
structural or nonstructural methods to
reduce or prevent damage; elevating a
structure; or, where appropriate,
designing it to adapt to, withstand and
rapidly recover from a flood event.’’ 242
Comment: A commenter wrote to
commend FEMA for incorporating
reduced discount rates in the costbenefit analysis of nature-based
solutions. The commenter requested
FEMA continue bolstering
accountability in the assessment process
by requiring practitioners to clearly
describe the nature-based alternatives
that were considered, and in cases
where they are ultimately deemed not
practicable, to provide an explanation
and analysis for their reasoning as part
of the final rule.
FEMA Response: FEMA appreciates
the commenter’s support and will
continue to provide guidance to help
communities recognize and capture the
long-term benefits of nature-based
solutions and all resilience actions in
evaluating practicable alternatives and
analyzing projects for cost-effectiveness.
FEMA’s regulation and policy require
the incorporation of nature-based
approaches to the extent possible. In
addition, FEMA’s FFRMS policy
clarifies that nature-based approaches
can also be incorporated as
minimization measures where they are
not possible as a practicable alternative.
As explained above, FEMA’s procedures
for review of its actions under part 9
include documenting the 8-step process
and will incorporate documentation of
nature-based solution consideration as
part of that process.
Comment: A commenter requested
FEMA more explicitly emphasize the
protection and restoration of floodplain
functions and nature-based alternatives
242 See
FFRMS policy, pg. 8.
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when taking Federal actions in the
floodplain by adopting rules that define
the values of floodplains, the ecosystem
processes or functions of floodplains
that generate those values, and the
attributes that are necessary for a
floodplain to be ‘‘functional.’’ The
commenter stated FEMA’s rule failed to
adequately describe the biogeomorphology of a functional
floodplain and the physical attributes of
the floodplain necessary to obtain those
values.
FEMA Response: FEMA appreciates
the commenter’s suggestion to integrate
bio-geomorphology and attributes of
functional floodplains into the
regulation but does not believe
additional changes are appropriate to
the final rule or FFRMS policy based on
the commenter’s concerns. FEMA’s
definition of the floodplain in this rule
is generally consistent with the
definition of floodplain in the NFIP and
with FEMA and other agencies’ historic
approach to such definitions and is
intentionally broad to help ensure the
agency can meet the needs of the action
and protecting floodplains and wetlands
consistent with Executive Order 11988,
as amended. For application of the
FFRMS, FEMA defines specific
floodplains in part 9 as using one of the
approaches detailed in the FFRMS
policy.
Concurrently, FEMA conducts other
environmental and historic preservation
reviews to determine whether proposed
actions could have other impacts to or
within floodplains and wetlands. FEMA
is incorporating nature-based solutions
into resilience efforts where appropriate
and believes the final rule will help
accomplish this goal. FEMA’s regulation
and policy do require the incorporation
of nature-based approaches to the extent
possible. In addition, FEMA’s FFRMS
policy clarifies that nature-based
approaches can also be incorporated as
minimization measures where they are
not possible as a practicable alternative.
Comment: A commenter stated
nature-based design elements and
nature-based solutions allowed a
structure to actively provide carbon
sequestration, decrease the magnitude
and frequency of maintenance leading
to increased structural lifespan. The
commenter recommended FEMA
incorporate this alternative to
traditional concrete as a nature-based
solution to serve as a mitigation
measure and design alternative.
FEMA Response: FEMA will use a
range of nature-based solutions where
possible and on a case-by-case basis
depending on the project. Project
location, including whether coastal or
not, will be a factor in determining the
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types of available nature-based solutions
FEMA may implement.
L. Other 8-Step Process Comments
1. Generally
Comments: One commenter provided
recommendations to encourage resilient
design. The commenter supported
FEMA’s proposed changes to §§ 9.9 and
9.11, which in the commenter’s view
would increase climate resilience, but
recommended FEMA require that the
alternatives analysis process incorporate
the consideration of an array of flood
mitigation practices and feedback from
state and local leaders. The commenter
requested changes to §§ 9.9 and 9.11 to
emphasize the effectiveness and benefits
of landscape-level methods as effective
alternatives to increase flood resilience
and as mitigation for projects with no
practical alternatives outside of the
floodplain and incorporate landscapelevel design strategies in developing
alternatives. The commenter requested
FEMA consider existing State, local, and
non-governmental resilient design
guidelines for the agency’s own
guidance and requested FEMA work
with other Federal agencies to develop
case studies and examples of projects
that achieve appropriate resilience
metrics in lieu of or in addition to
elevation. Another commenter
requested FEMA look for impacts
beyond the project boundaries and
requested FEMA consider off-site
impacts and mitigation measures. The
commenter recommended the rule’s
implementation and guidance
emphasize the effectiveness and benefits
of landscape-level practices that
encompass the full property, not just the
physical building site, to mitigate flood
impacts for projects with no practical
alternatives outside of the FFRMS
floodplain. The commenter requested
FEMA offer guidance to include
development practices, such as No
Adverse Impact or low-impact
development, and landscape features
and that any guidance should encourage
projects to assess opportunities to
restore the natural and beneficial
functions of the floodplain and
wetlands within or near the project site
as a part of potential risk mitigation
strategies.
FEMA Response: FEMA agrees that
the rule will increase climate resilience.
FEMA’s current alternatives analysis
process incorporates consideration of a
range of flood mitigation practices.
FEMA considers the following
alternatives: (a) no action; (b) alternative
locations; and (c) alternative actions,
including alternative actions that use
natural features or nature-based
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solutions. Where possible, nature-based
solutions, including those at the
landscape-level, shall be used. Where
natural features and nature-based
solutions are not practicable as an
alternative on their own to meet the
needs of FEMA applicants, natural
features and nature-based solutions may
be incorporated into actions as
minimization measures.
As explained above, the flood
minimization measures found in § 9.11
are reliable methods of providing
resilience to structures. FFRMS flood
resilience measures consider both
current and future flood risks to better
protect Federal investments. The
elevation requirement in § 9.11(d)(3)
applies to structures and also allows
floodproofing for non-residential
structures. The FFRMS policy provides
further explanation that structures that
must be located within the FFRMS
floodplain must be elevated or
floodproofed to the FFRMS flood
elevation. Additionally, the policy
clarifies further that facilities can use
elevation or any other appropriate
minimization measure to protect the
facility against the FFRMS flood
elevation.
FEMA does not believe the final rule
requires edits to address the
commenters’ concerns. As the
commenter notes, FEMA’s policy
provides more detail on how the agency
will implement nature-based solutions,
and FEMA believes this level of detail
is best provided in policy and
additional resources rather than directly
in the regulatory text.
As explained above, communities
provide input into the floodplain
determination for part 9. Pursuant to 44
CFR 9.11(d)(6), a more restrictive
Federal, State, or local standard will be
used. This includes the use of local
CISA data and methods that have been
adopted by a community for use in
floodplain management, as long as such
data results in a more restrictive
standard. FEMA values additional input
from SLTT partners and the public in
the 8-step process. Projects subject to
FFRMS are frequently designed by such
partners and will continue to be
designed to meet local needs as
appropriate.
FEMA will distribute additional
resources for the public and SLTT
partners identifying what the FFRMS is,
and how the agency will implement the
Executive Orders. These resources will
help applicants as they apply for FEMAfunded assistance programs. FEMA will
also provide technical assistance
through the agency’s regional offices in
support of FFRMS implementation.
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Comment: A commenter requested
FEMA consider the life of the project
when making flood risk protection
decisions and emphasize the life of the
project in the 8-step process, not just in
the footprint of the project but its
impact on the surrounding area. The
commenter also requested the analysis
of practicable alternatives result in an
adequate assessment and
documentation of the life cycle impacts
of nature-based approaches and natural
features.
FEMA Response: As explained further
in the FFRMS Job Aid,243 service life is
considered in the determination of the
FFRMS floodplain using CISA.
Additionally, in the 8-step decisionmaking process FEMA considers
whether a proposed action would be
located within and whether it would
affect a floodplain or wetland; FEMA
avoids Federal actions in floodplain and
wetland locations unless they are the
only practicable alternatives and are
able to minimize harm to and within
floodplains and wetlands.
Further, the service life of the project
is considered as part of the
practicability analysis, including
consideration of maintenance
requirements. FEMA’s procedures for
review of its actions under part 9
include documenting the 8-step process
and will incorporate documentation of
nature-based solution consideration as
part of that process.
2. Wetlands Identification and
Floodplain and Wetlands Preservation
Comments: Some commenters
requested additional clarification or
provided recommendations regarding
how FEMA identifies and preserves
wetlands as part of the 8-step process.
Four commenters requested FEMA
improve wetlands identification in the
8- step process. One commenter noted
that FEMA reviewers currently
consulted additional sources of
information only if other listed sources
provide inadequate information, which
could mean a FEMA reviewer would
stop the assessment after consulting the
National Wetlands Inventory (‘‘NWI’’).
The commenter stated the NWI was
only one imperfect source and could not
provide a definitive determination, as
the NWI documented only the
presumed presence of wetlands on a site
and did not accurately capture the full
delineation of wetlands at ground-scale.
Two of the commenters requested
FEMA update the regulatory text by
243 Available at https://www.regulations.gov/
document/FEMA-2023-0026-0004 and https://
www.fema.gov/sites/default/files/documents/fema_
ffrms-floodplain-determination-job-aid.pdf (last
accessed Jan. 24, 2024).
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directing reviewers to conclude the
assessment of whether or not an action
was in a wetland after consulting each
of the four sources of information. Two
other commenters agreed stating the
determination of the presence or
absence of a wetland in the project site
should not be based solely on the NWI
because of the NWI’s tendency to
underestimate actual wetland areas.
Those commenters recommended
FEMA encourage consulting various
sources beyond NWI. One commenter
noted that involving a trained wetland
delineator to assess wetland indicators
(soil, vegetation, hydrology) and
delineate wetland boundaries was
crucial to prevent the loss of critical
wetlands, especially considering their
role in flood water storage.
FEMA Response: FEMA did not
change the existing regulation or
process for identifying wetlands. FEMA
relies on the NWI to identify wetlands
for the purposes of applying the 8-step
process under 44 CFR part 9 but will
also accept other determinations as
provided by regulatory agencies or
applicants. FEMA does utilize
information from on-site evaluations,
including for locations not included in
the NWI; however, requiring an on-site
evaluation of the presence of wetlands
for every potential action would
severely delay the provision of disaster
assistance to impacted communities.
FEMA is not changing the current
process in step 4 in this rulemaking and
the implementation of the FFRMS
would only expand the floodplain of
consideration in step 4 of the 8-step
process. FEMA did not eliminate
consultation with the edits made to
§ 9.10. The edits made to § 9.10 are to
the factors used to identify the impacts
to proposed actions. Those edits were
made for consistency with other edits
made in the rule. Specifically, FEMA
defines ‘‘natural and beneficial values of
floodplains and wetlands’’ to mean the
features or resources that provide
environmental and societal benefits.
FEMA added additional clarification
that water and biological resources are
often referred to as ‘‘natural functions of
floodplains and wetlands’’ and also
incorporated additional clarifying
examples of water resource values,
living resource values, cultural resource
values, and cultivated resource values
for more consistency with the Revised
Guidelines and Executive Order 11988,
as amended. FEMA also edited
paragraph § 9.10(d)(2) for consistency
with edits made in § 9.4 defining the
natural and beneficial values of
floodplains and wetlands.
Comment: One commenter requested
FEMA take action to preserve wetlands
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in this rulemaking, requesting FEMA
prioritize wetlands preservation and
prevent harm to wetlands to the greatest
extent of the agency’s authorities. The
commenter recommended FEMA
prioritize policy solutions that
incentivize and fund the preservation of
all remaining wetlands and look to
climate-smart wetland restoration to
maximize benefits. Noting the recent
Supreme Court decision in Sackett v.
EPA,244 the commenter requested FEMA
act through this rulemaking to provide
whatever protection it can for wetlands.
The commenter explained the
permitting process under section 404 of
the Clean Water Act prior to the
Supreme Court decision for filling
wetlands and stated the Sackett v. EPA
decision 245 limited the scope of section
404.
The commenter requested FEMA
incorporate prohibitions on certain
types of activities in wetlands similar to
prohibitions on certain types of
activities in floodplains and provided
the example of prohibiting HMA
funding for new construction or
substantial improvements in a floodway
or new construction in a coastal high
hazard area unless the action
constituted a functionally dependent
use or facilitates an open space use. The
commenter suggested FEMA add
language to § 9.11(d)(1) to prohibit new
construction and substantial
improvement in a wetland, except for a
functionally dependent use; or a
structure or facility which facilitates an
open space use and also requested
FEMA amend the HMA and PA Policy
and Program Guides to reflect these
changes.
Two commenters requested FEMA
add language to the regulatory text
regarding the agency’s requirement to
restore and preserve both floodplains
and wetlands. One commenter wrote
this requirement was implemented in
§ 9.11(f), where FEMA established that
if an action harmed or degraded a
floodplain or wetland, the agency must
implement measures to restore the
natural and beneficial values; however,
the commenter stated FEMA did not
provide direction on the measures to be
used and the extent to which the natural
and beneficial values must be restored.
The commenter recommended FEMA
provide the criteria that would satisfy
the restore and preserve requirement in
the regulatory text or in associated
guidance. The commenter also
recommended FEMA require federal
actions result, as fully as possible, in no
net loss of both acreage and function for
244 Sackett
245 Sackett
floodplains and wetlands. The
commenter recommended FEMA
require the type and extent of mitigation
that applicants must undertake to satisfy
the ‘‘restore and preserve’’ language
where floodplains and wetlands were
known to be negatively impacted.
Another commenter requested FEMA
add ‘‘or restore’’ after ‘‘preserve’’ in all
the appropriate places in the regulatory
text.
FEMA Response: FEMA believes the
commenters’ regarding wetlands
preservation concerns are addressed by
the existing regulation. As stated in
§ 9.2(d) and § 9.11(e), FEMA’s policy is
to preserve and enhance the natural
values of floodplains and wetlands
when the agency has the opportunity to
do so. FEMA’s longstanding
requirements in the final rule at 44 CFR
9.11(e) outline the agency’s
requirements to restore and preserve the
natural and beneficial values served by
floodplains and wetlands. FEMA does
not believe additional changes to the
regulatory text or FFRMS policy are
needed to achieve the commenters’ goal
of wetlands preservation.
FEMA did not propose to change the
way that the 8-step process is applied to
wetlands, and is not doing so in this
final rule. FEMA notes the definition of
wetlands in 44 CFR 9.4 has always been
much broader than that under the Clean
Water Act (CWA). Thus, under current
practice the 8-step process has been
applied to wetlands regardless of their
jurisdictional status under the CWA.
FEMA believes this commenter’s
concerns are already addressed by the
existing regulation.
Additionally, FEMA understand the
first commenter’s desire to prohibit
certain actions in wetlands but again
believes the current 8-step process
adequately addresses the commenter’s
concerns. In the 8-step decision-making
process, wetland sites are avoided
where possible. FEMA takes no action
in a wetland unless the importance of
the wetland site clearly outweighs the
requirements to 246:
(i) Avoid the destruction or
modification of the wetlands;
(ii) Avoid direct or indirect support of
new construction in wetlands;
(iii) Minimize the destruction, loss or
degradation of wetlands; and
(iv) Preserve and enhance the natural
and beneficial values of wetlands.
FEMA notes the 8-step process
governs FEMA actions and the Sackett
case does not apply in this context.
While FEMA does consider new
construction in wetlands, to include the
placement of fill, and will also consider
v. EPA, 598 U.S. 651 (2023).
v. EPA, 598 U.S. 651 (2023).
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246 See
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alternatives, the 8-step process is not an
authorization or permitting process.
Additionally, FEMA notes the process is
only applicable to actions funded or
performed by FEMA and not more
broadly applicable to actions performed
by SLTTs or individuals using nonFederal funding.
The revisions to part 9 in this final
rule do not change FEMA’s longstanding requirement as part of FEMA’s
implementation of Executive Order
11988, as amended, and Executive
Order 11990 to only perform or fund
actions within or affecting wetlands if
those actions are the only practicable
alternative. FEMA considers alternative
locations, alternative actions, naturebased solutions, and the no action
alternative under the practicability
analysis and will only perform or fund
the action when there are no practicable
alternatives. FEMA will minimize any
adverse impacts when doing so. FEMA
believes the commenter’s concerns
requesting revisions to § 9.11(d)(1) to
add prohibitions on specific actions in
wetlands are unwarranted given the
agency’s long-standing process that is
not changing as a result of the changes
made in this final rule or FFRMS policy.
FEMA’s mission is to help people
before, during and after disasters. While
this focus on saving life and property
allows for the restoration and
preservation of the natural and
beneficial values served by floodplains
and wetlands, that is not the primary
mission of the agency. Accordingly, the
majority of FEMA’s actions within
floodplain or wetlands for repairs,
replacement, or mitigation of risk to
existing structures and facilities.
Requiring no net loss in area or function
of floodplains or wetlands would limit
the agency’s ability to assist disasterimpacted communities, as well as
reduce risk within those communities.
Additionally, requiring mitigation from
disaster-impacted communities may
prolong or inhibit their recovery
process. FEMA instead relies on the
alternatives analysis required by 44 CFR
part 9 and takes no action within
floodplains or wetlands unless there is
no practicable alternative.
FEMA recognizes the concerns of
commenter seeking edits to the
regulation and guidance to provide
criteria to satisfy the restore and
preserve requirement, but again
disagrees that such edits are necessary
in regulatory text or the FFRMS policy
to achieve the goals of floodplain and
wetlands restoration and preservation.
FEMA notes that in this rulemaking the
agency did not make changes to the
restore and preserve requirements in
former § 9.11(e) other than updating the
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numbering (this rule moves former
§ 9.11(f) to § 9.11(e)). FEMA will
provide additional information and
implementation resources to SLTT
partners, stakeholders, and the public as
part of the FFRMS implementation and
will consider the commenter’s
suggestions regarding additional
information on the criteria to satisfy the
requirements of new § 9.11(e) when
finalizing those resources. FEMA will
also consider issuing further guidance
through the agency’s grant programs on
this point.
Regarding another commenter’s
request to add ‘‘or restore’’ after
‘‘preserve’’ throughout the regulatory
text, FEMA notes that the regulatory text
is consistent with the long-standing
policy outlined in 44 CFR 9.2.
Specifically, it is the agency’s policy to
‘‘restore and preserve the natural and
beneficial values served by floodplains’’
and ‘‘preserve and enhance the natural
values of wetlands.’’ Where floodplains
are addressed in the regulatory text,
‘‘restore and preserve’’ is used, whereas
‘‘preserve’’ is used for wetlands, except
for § 9.11(e)(3), which combines the two
priorities more broadly in relation to
natural and beneficial values of
floodplains and wetlands. This language
is consistent with Executive Order
11988, as amended, which directs
agencies to ‘‘restore and preserve the
natural and beneficial values served by
floodplains,’’ and Executive Order
11990, which directs agencies to
‘‘preserve and enhance the natural and
beneficial values of wetlands.’’ FEMA
notes that the language in Executive
Order 11990 omits ‘‘restore’’ in
connection to wetlands.
3. Public Notice
Comments: Some commenters
requested additional edits to the public
notice requirements of the 8-step
process. One commenter requested more
specific guidance about the types and
amount of information the notice would
provide and the extent to which impacts
will be identified and explained to the
public and recommended FEMA revise
the regulation to require FEMA to make
site maps electronically available with
the rest of its public notice. Two
commenters requested the rule
encourage community engagement and
community-led planning by requiring
early engagement with affected
communities to understand the
parameters of risks and vulnerabilities
with engagement extending into the
project design and implementation. The
commenter requested public
engagement go beyond the existing
notice requirements to mandate
proactive and meaningful outreach to
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affected communities, allowing
communities to provide input that
engineers and developers may not have
and improving the overall flood risk
knowledge of communities. A third
commenter recommended FEMA
incorporate language to § 9.6 and § 9.8
to codify an emphasis on environmental
justice by providing notice to
individuals with limited English
proficiency and individuals with
disabilities, as well as communities or
groups of people who are potentially
affected and who are not regular
participants in Federal decision-making.
Two other commenters agreed with the
recommendation for access to
individuals with limited English
proficiency.
FEMA Response: FEMA is not
updating significant portions of the
public notice process in this
rulemaking, as FEMA does not believe
the current notice process is inadequate.
However, FEMA did update § 9.8(c)(4)(i)
to incorporate notice through the
internet or another comparable method.
During the public notice process, FEMA
will also provide links to electronic
versions of relevant maps.
FEMA does accept public comments
on proposed actions during both the
early and final public notice periods,
addressed in §§ 9.8 and 9.12. Early
public notice allows the public to
provide initial input on alternatives to
be considered and potential issues with
a proposed action, which may include
specific measures to minimize flood
risk. The final public notice allows for
the public to review the decisionmaking process conducted by the
agency and provide any input before the
action is taken. FEMA notes community
planning, such as hazard mitigation
planning, can inform the 8-step process.
FEMA notes this final rule does not
apply to a local community’s permitting
processes under the NFIP’s floodplain
management regulations. Those
regulations are found at 44 CFR part 59
et seq. FEMA defines ‘‘action subject to
the FFRMS’’ as ‘‘any action where
FEMA funds are used for new
construction, substantial improvement,
or to address substantial damage to a
structure or facility.’’ The FFRMS
applies to grants for projects funding the
new construction, substantial
improvement, or repair of substantial
damage under FEMA programs such as
IA, PA, and HMA programs, and grants
processed by FEMA’s GPD.
FEMA routinely translates agency
materials into languages other than
English as appropriate 247 and consistent
247 FEMA’s website has information and materials
available in languages other than English, including
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with FEMA’s Language Access
Policy.248 Specifically incorporating this
policy into the rulemaking is not
necessary, as FEMA’s process is set
forth in the Language Access Policy.249
That policy governs how the agency
would handle written translations, as
appropriate and consistent with
Executive Order 13166, Improving
Access to Services to Persons with
Limited English Proficiency, the DHS
Language Access Plan, and Section 308
of the Stafford Act, 42 U.S.C. 5151, as
applicable. In accordance with those
existing requirements, FEMA ensures
appropriate translations of public
notices for the 8-step process.250 FEMA
also ensures individuals with
disabilities have effective
communication access to FEMA
programs and activities, consistent with
requirements under sections 504 and
508 of the Rehabilitation Act of 1973, 29
U.S.C. 794, 794d, and FEMA’s Section
504 Implementation Plan.251
Comment: One commenter requested
FEMA implement a public tracking
system of all FEMA actions that are
subject to part 9. The commenter stated
a tracking system would ensure the
public could assess the cumulative
impacts of a proposed action. The
commenter also requested FEMA accept
public comment on proposed actions.
FEMA Response: FEMA does accept
public comments on proposed actions
during both the early and final public
notice periods, addressed in §§ 9.8 and
9.12. Early public notice allows the
public to provide initial input on
alternatives to be considered and
potential issues with a proposed action.
Spanish, French, German, Arabic, Hausa,
Vietnamese, Portuguese, Chinese, Japanese, Hindi,
Myanmar (Burmese), Korean, Nepali, Somali,
Swahili, Tagalog, Tongan, Creole, Fijian, and
Russian. See https://www.fema.gov/disaster/
recover/languages (last accessed Mar. 28, 2024).
248 FEMA Policy FP–256–23–001, available at
https://www.fema.gov/sites/default/files/
documents/fema_policy-language-access.pdf (last
accessed Mar. 27. 2024).
249 FEMA’s Language Access Policy requires the
agency to have processes in place to regularly
identify and assess the language assistance needs of
the public and requires written translation of vital
documents in languages other than English based
on assessments of need and capacity. See Principles
A. and C. of the policy available at https://
www.fema.gov/sites/default/files/documents/fema_
policy-language-access.pdf (last accessed Mar. 27.
2024).
250 See e.g. ‘‘FEMA Public Notice: 4618–DR–PAPennsylvania Individual Assistance, Public
Assistance and HMGP’’ available at https://
www.fema.gov/disaster/4618/publicnotice (last
accessed June 11, 2024); ‘‘DR–4673–FL EHP Public
Notice 001’’ available at https://www.fema.gov/
disaster-federal-register-notice/dr-4673-fl-ehppublic-notice-001 (last accessed June 11, 2024).
251 FEMA Section 504 Implementation Plan,
available at https://www.fema.gov/sites/default/
files/2020-06/fema_section-504-implementationplan.pdf (last accessed Mar. 27, 2024).
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The final public notice allows for the
public to review the decision-making
process conducted by the agency and
provide any input before the action is
taken. The agency has updated the rule
to allow for electronic notification of
public notices to increase accessibility
to the public.
FEMA appreciates the commenter’s
suggestion that the agency provide a
public tracking system for part 9. FEMA
provides data on actions taken by the
agency through the OpenFEMA Data
Sets.252 FEMA is not proposing any
additional systems of record with this
rulemaking.
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4. Impacts to Floodplains and/or
Wetlands
Commenters provided feedback on
FEMA’s review of and requirements
regarding impacts to floodplains and/or
wetlands in part 9. While one
commenter provided support for the
rule’s prohibition against locating a
proposed action in a floodplain or
wetland if a practicable alternative
exists outside the floodplain or wetland
in proposed §§ 9.6(b)(3) and 9.9(d)–(e)
and agreed with FEMA’s approach of
first avoiding impacts, then minimizing
any impacts that must occur, and
restoring impacted areas, other
commenters provided recommendations
for additional edits to the regulatory
text.
Comment: One commenter requested
FEMA revise § 9.10 to require
consideration of disproportionate and
adverse effects on communities with
environmental justice concerns,
whether direct, indirect, or cumulative.
FEMA Response: FEMA appreciates
the commenter’s concerns regarding
equity and environmental justice. The
agency incorporates natural
environment, social concerns, and
economic aspects into the 8-step process
as part of the practicability analysis
(addressed in 44 CFR 9.9). FEMA’s
revisions to part 9 reflect consideration
of the type and criticality of the action
involved, the availability and
actionability of the data, and equity
concerns in the implementation of
Executive Order 11988, as amended.
FEMA also has an agency-wide
initiative focused on reducing barriers
and increasing opportunities so all
people, including those from vulnerable
and underserved communities, can get
help when they need it.253
252 See FEMA, OpenFEMA Data Sets, https://
www.fema.gov/about/openfema/data-sets (last
accessed Mar. 25, 2024).
253 See https://www.fema.gov/emergencymanagers/national-preparedness/equity (last
accessed Jan. 24, 2024).
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The impact analysis addressed in
§ 9.10 focuses on impacts to and from
floodplains and wetlands associated
with a proposed action. As part of the
evaluation of impacts, FEMA considers
the impacts addressed in § 9.10(d),
which include factors that evaluate the
impact of flooding on public health,
safety, and welfare. In addition to this
evaluation of flood hazard, FEMA
reviews all proposed FEMA-funded
actions for potential disproportionate
and adverse human health and
environmental effects on communities
with environmental justice concerns
using a standardized environmental
justice compliance review process.
FEMA believes these current practices
address the commenter’s concern, and
revisions to the final rule are not
necessary.
Comment: One commenter requested
FEMA identify both the impacts on the
floodplain and also the watershed in
Step 4. The commenter noted that the
subsequent steps in the process
described consideration of this. The
commenter also requested FEMA
articulate and follow a ‘‘no adverse
impact’’ principle. The commenter
requested FEMA specifically address
cumulative impacts of an action, as this
is especially important when assessing
flood impacts, as development actions
and land use changes in a watershed
would alter the floodplain.
FEMA Response: FEMA is not
changing the current process in step 4
in this rulemaking. The implementation
of the FFRMS would only expand the
floodplain of consideration in step 4 of
the 8-step process. The changes made in
§ 9.10 are intended as clarifying edits for
consistency with other FFRMS
implementing edits and are not
substantive policy changes. FEMA did
not propose the policy changes
suggested by the commenter, and FEMA
may take them under consideration in
the future. Note that under step 1,
FEMA considers whether proposed
actions can impact or be impacted by a
floodplain or wetland, not just whether
or not the proposed action is located in
a floodplain or wetland. This provision
addresses the commenter’s concerns
regarding actions in the watershed
impacting floodplains and wetlands.
Comment: Another commenter
requested FEMA retain the language in
current § 9.10(c) stating that ‘‘Regional
Offices of the U.S. Fish and Wildlife
Service may be contacted to aid in the
identification and evaluation of
potential impacts of the proposed action
on natural and beneficial floodplain and
wetland values.’’ The commenter stated
that given USFWS’s particular expertise
in understanding coastal and wetland
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56997
ecosystems, and the importance of
maintaining the natural beneficial
values of these habitats, the commenter
recommended retaining the consultation
language ‘‘rather than merely stepping it
down to guidance.’’
The commenter further recommended
FEMA strengthen the language and
require FEMA at least contact the
USFWS when making any such
evaluation in case the USFWS had
concerns about or special understanding
of the values of those habitats, including
for threatened and endangered species.
FEMA Response: FEMA is not
changing the current process in step 4
in this rulemaking and the
implementation of the FFRMS would
only expand the floodplain of
consideration in step 4 of the 8-step
process. This rule does not eliminate
consultation with the edits made to
§ 9.10, as the existing regulatory text
merely states the agency ‘‘may’’ contact
the USFWS for impact identification on
the natural and beneficial values of
floodplains and wetlands. The edits
made to § 9.10 removes this optional,
internal U.S. government process from
the regulation; the process will be
further outlined in guidance. FEMA
notes this section did not address
FEMA’s consultation requirements
under the Endangered Species Act.
In this final rule, FEMA updates the
definition of ‘‘natural and beneficial
values of floodplains and wetlands’’ to
include consideration of features or
resources that provide environmental
and societal benefits. The definition also
includes examples of what ‘‘natural
functions of floodplains and wetlands’’
means. FEMA does not believe
additional edits to the final rule are
required to address the commenter’s
concerns regarding coastal and wetland
ecosystems and habitats for threatened
and endangered species, because these
concerns are addressed in the definition
at 44 CFR 9.4. The definition provides
some examples but is not all inclusive,
and FEMA will consider providing
additional examples in guidance to
further clarify and address the
commenter’s concerns.
FEMA edited § 9.10(d)(2) for
consistency with edits made in § 9.4
defining the natural and beneficial
values of floodplains and wetlands.
Specifically, the edits to § 9.10(d)(2) add
providing habitats and enhancing
biodiversity under the living resource
values FEMA will consider in step 4 of
the 8-step process. In step 4, FEMA
determines impacts to the floodplain,
which include changes to the hydraulics
and hydrology of the floodplain which
informs potential impacts to protected
species and their critical habitats. FEMA
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will continue to perform Section 7
consultation under the Endangered
Species Act as required. FEMA reviews
all applicable actions under the
Endangered Species Act, and such
reviews are coordinated with the 8-step
decision-making process.
Comment: While a commenter
expressed appreciation of FEMA’s
recognition of the processes of storing
floodwater and groundwater recharge,
the commenter recommended the rule
clarify that floodwater storage and
groundwater recharge may have
functions that extend beyond the time
and area of a flood (such as the base
flood). The commenter stated
floodwater storage and groundwater
infrastructure placed in the floodplain
may result in continued inundation of
floodplain areas. However, those types
of infrastructure may be required to
convey stored floodwater to
groundwater recharge sites, minimizing
impacts of flooding within the
floodplain.
FEMA Response: Through the 8-step
process, FEMA considers the impacts to
and from the floodplain including the
natural and beneficial functions of the
floodplain and actions which may
support development within the
floodplain. Additional clarifications are
not required in the regulatory text to
address the commenter’s concerns as
the 8-step process resolves these
concerns overall.
Avoidance
Comments: Some commenters
requested FEMA prioritize avoidance of
floodplains and wetlands as part of this
rulemaking and FFRMS policy. Two
commenters wrote a primary intent of
Executive Orders 11988, as amended,
and 11990 was avoidance of floodplains
and wetlands development and stated
avoidance was the most effective risk
reduction strategy. Some commenters
recommended FEMA issue guidance,
with one comment recommending the
guidance describe how regional offices
should review projects post-Sackett v.
EPA,254 and strengthen the practicable
alternatives analysis. Another
commenter requested that the agency
incorporate FFRMS guidance into PA
and HMA guidance.
One commenter wrote the FFRMS
was a process to assess the siting and
design of a proposed action, rather than
a mere elevation standard and requested
FEMA promote avoidance as the
preferred alternative to actions that
would modify or occupy floodplains or
wetlands. The commenter stated FEMA
must consider design alternatives in
254 Sackett
Step 3 of the 8-step process at § 9.9.
Three commenters wrote elevation and
floodproofing were often prioritized
instead and requested FEMA prioritize
avoidance as the first alternative to
actions that would modify or
compromise floodplain function as the
most effective risk reduction strategy,
rather than using elevation or
floodproofing as first design
alternatives. Two commenters agreed
that FEMA should strengthen Step 3 in
§ 9.9 to emphasize avoiding federal
actions in floodplains and wetlands
where practicable.
FEMA Response: While FEMA made
edits to § 9.2(d) to reorder the agency’s
actions to prioritize minimizing the
impact of floods on human health,
safety, and welfare in this part, those
edits do not change FEMA’s longstanding requirement as part of
implementation of Executive Order
11988, as amended, to only perform or
fund actions within or affecting
floodplains if those actions are the only
practicable alternative. See, e.g., new 44
CFR 9.9(d). Through the 8-step process,
FEMA will consider alternative
locations, alternative actions, naturebased solutions, and the no action
alternative under the practicability
analysis. If there is no practicable
alternative, FEMA may perform or fund
the action and will minimize any
adverse impacts when doing so. FEMA
believes the commenters’ concerns are
unwarranted given this long-standing
process that is not changing as a result
of the changes made in this final rule.
FEMA agrees with one of the
commenters that FFRMS is not merely
an elevation standard. As section G.2 of
FEMA’s FFRMS policy states ‘‘[t]he
FFRMS is a resilience standard.
Particularly in cases where elevation
may not be feasible or appropriate for
facilities, the FFRMS floodplain,
determined according to the process
described in section C of this policy,
establishes the level to which a
structure or facility must be resilient.
Resilience measures include using
structural or nonstructural methods to
reduce or prevent damage; elevating a
structure; or, where appropriate,
designing it to adapt to, withstand and
rapidly recover from a flood event.’’ 255
As explained above, FEMA has not
proposed changes to the way that the 8step process is applied to wetlands.
FEMA notes the definition of wetlands
in 44 CFR 9.4 has always been much
broader than that under the Clean Water
Act (CWA). Thus, under current
practice the 8-step process has been
applied to wetlands regardless of their
v. EPA, 598 U.S. 651 (2023).
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255 See
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jurisdictional status under the CWA.
However, the 8-step process does not
have the same requirements of Section
404 of the Clean Water Act. While
FEMA does consider new construction
in wetlands, to include the placement of
fill, and consider alternatives, the 8-step
process is not an authorization or
permitting process.
As previously explained, FEMA will
distribute resources for the public and
SLTT partners and the public
identifying what the FFRMS is, and how
the agency will implement the
Executive Orders to further assist
applicants for FEMA-funded assistance
programs. FEMA will also provide
technical assistance through the
agency’s regional offices in support of
FFRMS implementation. FEMA notes
while the PA and HMA guidance
documents are instructive to applicants,
FEMA’s regulations at 44 CFR part 9
control the agency’s actions for all of
FEMA’s programs.
5. Zero/No Rise
Comments: Some commenters
requested FEMA implement a ‘‘zerorise’’ or ‘‘no rise’’ standard in the 8-step
process. Four commenters stated that
FEMA should require a ‘‘zero rise’’
standard for Federal actions where a
regulatory floodway had not been
designated. The commenters noted
FEMA’s edits to § 9.11 but
recommended an additional edit to not
permit any increase in flood levels
when a regulatory floodway had not
been designated.
Another commenter raised concerns
about these requirements in the FFRMS
policy. The commenter stated that the
requirement for FEMA-regulated
floodplains without a floodway in the
FFRMS policy was unreasonable. The
commenter wrote the requirement to
include all anticipated development
was challenging for applicants, as
anticipated development might never
happen or substantially change due to
the project approval process and
recommended limits be placed on what
was included in the anticipated
development to make the standard more
reasonable.
FEMA Response: The changes made to
§ 9.11(d)(4) provide clarification that the
agency will continue to require the
NFIP’s minimum standard (currently 1foot rise) or, consistent with § 9.11(d)(6),
a more restrictive standard adopted by
a community. This has been a longstanding requirement of the NFIP.256
FEMA’s edits help ensure consistency
with the NFIP’s minimum standard
while allowing the flexibility to utilize
256 44
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a community’s own more restrictive
standards.
FEMA did not propose to prohibit any
increase in flood levels when a
regulatory floodway has not been
designated, and prefers not to make
such a change at this stage of the
rulemaking. The current process for
determining increases in floodplains
when a regulatory floodway has not
been designated is consistent with the
requirements of the NFIP and of many
communities throughout the country.
FEMA may take the commenter’s
suggestion under consideration in the
future.
6. Prohibiting the Use of Fill
Comments: Some commenters also
requested FEMA prohibit the use of fill
for elevation in the 8-step process.
Commenter requested FEMA consider
the impacts of using fill to achieve
elevation requirements. One commenter
stated elevation could have damaging
impacts if implemented without
considering stormwater runoff and that
using fill dirt to achieve floodplain
elevation requirements could push
stormwater onto surrounding areas and
worsen or create flooding problems for
adjacent properties. Another commenter
stated that while intended to reduce
flood risk, using fill dirt to achieve
floodplain elevation requirements could
exacerbate flooding in the surrounding
area. This commenter also noted that
placing fill in floodplains could severely
impact floodplain and wetland
ecosystems that are critical habitat for
endangered species. Some commenters
referenced a recent TMAC report that
identified several concerns and perverse
incentives from the use of fill to achieve
elevation and recommended FEMA
discourage the use of fill. Commenters
requested FEMA revise § 9.11 to
prohibit the use of fill to achieve
elevation requirements in the FFRMS
floodplain. Where fill is unavoidable,
commenters requested FEMA require
that a project retain the volume of water
onsite that is equivalent to the volume
of fill used or have adequate
compensatory flood storage
requirements. One commenter requested
that in the Special Flood Hazard Area,
FEMA require elevation to meet FFRMS
requirements to be on an open
foundation. Another commenter
recommended that where the use of fill
was necessary as a last resort, added
measures should be required to replace
the on-site ecosystem benefits of
disturbed wetlands.
FEMA Response: FEMA appreciates
the commenters’ concerns regarding the
use of fill and agrees that the impacts of
its use must be considered. As part of
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Step 4 where FEMA identifies impacts,
the agency identifies any impacts to the
floodplain which would include
increasing flood risks to adjacent areas.
In § 9.11(d)(4) and (d)(6), FEMA’s
minimization requirements ensure that
fill within regulatory floodways or
floodplains where no regulatory
floodway is designated will generally
not increase flood levels within the
community. These minimization
requirements ensure consistency with
the NFIP or any more restrictive
Federal, State, or local requirements.
Until a regulatory floodway is
designated, no fill is permitted within
the base floodplain unless it is
demonstrated that the cumulative effect
of the proposed development, when
combined with all other existing and
anticipated development, will not
increase the water surface elevation of
the base flood more than the amount
designated by the NFIP or the
community, whichever is most
restrictive.257 Under § 9.11(d)(4), fill is
also prohibited within a designated
regulatory floodway that would result in
any increase in flood elevation within
the community during the occurrence of
the base flood discharge. FEMA
prioritizes elevation on open works over
elevation on fill in § 9.11(d)(7),
requiring elevation on open works
rather than on fill in coastal high hazard
areas and elsewhere, as practicable.
The substance of the requirements in
§ 9.11(d) was not changed as part of this
final rule. FEMA did not propose to
prohibit elevation on fill as suggested by
some of the commenters, and prefers not
to implement such a change at this stage
of the rulemaking. FEMA will remain
cognizant of the potential impacts of use
of fill as part of the project approval
process as described above in the 8-step
process, and may take the comments
under consideration for further action at
a future date.
The revisions to part 9 do not change
FEMA’s long-standing requirement as
part of implementation of Executive
Order 11988, as amended, to only
perform or fund actions within or
affecting floodplains and wetlands if
those actions are the only practicable
alternative. See, e.g., new 44 CFR 9.9(d).
No further edits are required to part 9
to address the commenter’s concerns
regarding fill in wetlands. As FEMA’s
current part 9 process currently
prohibits actions in wetlands where
there is a practicable alternative, fill and
dredge practices to achieve elevation or
to construct buildings/facilities in
wetlands would only be allowed in
those instances where there were no
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257 44
CFR 9.11(d)(4).
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56999
alternatives and the need to perform the
action outweighed agency’s
requirements outlined in 44 CFR
9.9(e)(2). New § 9.11(e) (current
§ 9.11(f)) requires restoration where
applicable.
FEMA appreciates the commenters’
reference to the recent TMAC
recommendations on the use of fill. The
TMAC recommended FEMA consolidate
and clarify fill requirements for the
NFIP in 44 CFR 60.3 and consider
prohibiting the use of fill as an elevation
technique for residential and
commercial structures in the SFHA
(both coastal and riverine); prohibiting
fill as a floodproofing technique; and
allowing a limited amount of fill for
bridges, dams, and wastewater
treatment facilities along with other
uses functionally dependent on
proximity to water. The TMAC also
recommended that FEMA (1) require
communities participating in the NFIP
to quantify and put on file the impacts
of proposed fill and other development
on flood stages and the environment
prior to issuing fill permits and (2)
require notice to property owners and
appropriate environmental agencies
when increases in flood elevation or
potential negative consequences were
found and could not be mitigated.258
These recommendations are clearly
focused on the NFIP, not the 8-step
process in part 9 in this rulemaking. As
described above, the 8-step process
contains sufficient flexibility to allow
FEMA to address concerns related to
use of fill during Steps 4 and 5 of the
process. While FEMA is considering
these recommendations consistent with
the NFIP requirements, the agency notes
TMAC recommendations are not
binding on FEMA.
Comment: One commenter wrote
requesting that FEMA eliminate Letter
of Map Change (LOMC) exceptions for
sites. The commenter cited HUD’s
proposed rule and stated that an
exception could incentivize adding fill
in a floodplain, which could lead to a
reduced floodplain function, as well as
increased flood risk to surrounding
properties.
FEMA Response: FEMA’s regulation
does not specifically except areas or
sites where FEMA has issued a Letter of
Map Change (LOMC) from the 8-step
process. In their original regulation,
HUD did have a specific exception for
any non-wetland site in a floodplain for
which FEMA had issued a final Letter
of Map Amendment (LOMA), final
258 See TMAC 2023 Interim Report, available at
https://www.fema.gov/sites/default/files/
documents/fema_rm-tmac-2023-interim-report30OCT2023.pdf (last accessed Mar. 28, 2024).
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Letter of Map Revision (LOMR), or a
final Letter of Map Revision Based on
Fill (LOMR–F) that removed the
property from a FEMA-designated
floodplain. The exception under HUD’s
original regulation also included
conditional LOMAs, LOMRs, or LOMRFs if HUD or the responsible entity’s
approval was subject to the
requirements and conditions of the
conditional LOMA or LOMR.259 FEMA
notes that HUD removed these
exceptions from 24 CFR 55.12(c)(8)(i)
and(ii) in recent updates to their
regulation.260 As FEMA did not except
those areas in the regulation, the FEMA
rule does not require revision for the
FFRMS floodplain to apply and for
FEMA to conduct the 8-step process if
those areas are determined to be within
the expanded floodplain. FEMA notes
the changes to part 9 in this final rule
do not apply to the NFIP’s regulations
on mapping and changes to FEMA
maps. Those regulations are found at 44
CFR part 70 et seq.
7. Practicability
Commenters also recommended
changes to the practicability analysis in
the 8-step process.
Comments: A commenter stated
concern that actions in floodplains and
wetlands would be allowed only as a
last resort under the rule and
recommended that FEMA revise the
regulations to more strongly clarify to
officials implementing the regulations
that actions in floodplains, especially
those on already urbanized lands, could
be allowed, provided flood resilience
measures were employed. Conversely,
another commenter recommended that
FEMA prioritize avoidance as the first
alternative to actions that would modify
or compromise floodplain function as
the most effective risk reduction
strategy. The commenter recommended
that where avoidance cannot be
achieved, resilient design should be
incorporated meaningfully. A third
commenter stated the feasibility
analysis should consider whether rightof-way is not available and
condemnation is required.
FEMA Response: The revisions to part
9 do not change FEMA’s long-standing
requirement as part of implementation
of Executive Order 11988, as amended,
to only perform or fund actions within
or affecting floodplains if those actions
are the only practicable alternative. See,
e.g., new 44 CFR 9.9(d). This rule does
not alter the 8-step process requirement
to evaluate practicable alternatives,
259 See 24 CFR 55.12(c)(8)(i) and (ii) as of March
28, 2024.
260 89 FR 30850 (Apr. 23, 2024).
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which includes consideration of
locations outside of the floodplain or
wetlands. Through the 8-step process,
FEMA considers alternative locations,
alternative actions, nature-based
solutions, and the no action alternative
under the practicability analysis. If there
is no practicable alternative, FEMA will
perform or fund the action and will
minimize any adverse impacts when
doing so. FEMA believes the
commenters’ concerns are unwarranted,
given this long-standing process that is
not changing as a result of the changes
made in this final rule. Further, the
practicability factors, which are
outlined in 44 CFR 9.9(c), include the
consideration of legal constraints, which
would generally encompass the
acquisition of right-of-way for proposed
actions.
Comment: A commenter requested
specific revisions to § 9.9 to include
‘‘the presence of threatened or
endangered species or their critical
habitat’’ as an example under ‘‘natural
environment.’’ The commenter also
requested FEMA include ‘‘the presence,
absence, and/or effectiveness of local or
state land management plans to
conserve natural values of the
floodplains and wetlands at issue.’’
Finally, this commenter requested
FEMA include ‘‘participation of the
impacted community or communities in
the Community Rating System program’’
when analyzing the practicability of
alternatives to proposed actions in
floodplains or wetlands. The commenter
requested FEMA edit § 9.9 to include
examples of floodplain values,
including ‘‘wildlife habitat and
connectivity, including for threatened
and endangered species’’ in
§ 9.9(e)(2)(iv) and § 9.9(e)(3)(iv).
FEMA Response: FEMA respectfully
declines the commenter’s request, as the
agency believes many of these examples
would be covered under the existing
regulatory text, and no edits are
required in this final rule to address
these concerns. Specifically, the final
rule lists ‘‘natural environment’’ and
includes ‘‘habitat,’’ which addresses the
commenter’s concerns about the
inclusion of threatened and endangered
species or their critical habitat. ‘‘Social
concerns’’ includes ‘‘land patterns;’’
under these factors, FEMA does
consider local or state land management
plans when considering practicability.
FEMA appreciates the commenter’s
interest in the agency’s Community
Rating System (CRS) program. FEMA
notes that the commenter’s concerns
regarding threatened and endangered
species and their critical habitats is
addressed in the CRS program through
credits for communities that protect
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threatened and endangered species.261
A community’s participation in the CRS
program does not impact an action’s
practicability under part 9. Updating
part 9 to incorporate the CRS program
is inappropriate, as the CRS program
provides discounts to individual
policyholders in NFIP participating
communities and as explained above,
part 9 applies only to Federally-funded
actions.
Further, FEMA’s regulatory text is
consistent with the Revised Guidelines.
Wildlife habitat and connectivity are
already incorporated into the rule in the
definition of ‘‘natural and beneficial
values of floodplains and wetlands.’’
Specifically, that definition references
‘‘Living Resource Values’’ as ‘‘providing
habitats and enhancing biodiversity for
fish, wildlife, and plant resources.’’ This
language encompasses the wildlife
habitat and connectivity requested by
the commenter, and no edits are
required to the final rule.
M. Other Comments
Comments: Two comments offered
alternatives to the 8-step process
outlined in part 9. One commenter
recommended retreating a mile from
every coast, river, and flood area and
making those areas public lands,
swamps, or flood zones and that FEMA
prohibit rebuilding when buildings are
destroyed due to sea level rise and
convert those areas into their suggested
publicly owned buffer. Another
commenter recommended using
eminent domain to reclaim flood
damaged structures and reclaim lands,
wetlands, swamps, and other properties,
allowing these areas to naturally buffer
and absorb flooding. The commenter
stated private property rebuilding
should not take place in a flood zone
using taxpayer dollars, subsidies, grants,
or any form of tax revenue.
FEMA Response: FEMA did not
propose, and does not believe it would
be appropriate to implement, a standard
that categorically prohibits rebuilding
within one mile of every coast, river,
and flood area.
Comment: Another commenter stated
there would likely be instances where
the cost of floodproofing or elevating
Federal and non-Federal buildings with
the new FFRMS floodplain would be
found to be unreasonable. The
commenter recommended against any
kind of automatic seizure or destruction
in those instances, but rather suggested
developing a process in which factors
261 See CRS Coordinator’s Field Manual 2017 and
2021 Addendum, available at https://
www.fema.gov/floodplain-management/
community-rating-system (last accessed Apr. 4,
2024).
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could be considered in determining the
future disposition of such buildings and
encouraged the ability to grandfather-in
some buildings so they could maintain
their functionality until such a time as
they actually suffered flood damage.
FEMA Response: Part 9 only applies
to FEMA actions and the FFRMS only
applies to FEMA actions that are subject
to the FFRMS. FEMA defines ‘‘action
subject to the FFRMS’’ as ‘‘any action
where FEMA funds are used for new
construction, substantial improvement,
or to address substantial damage to a
structure or facility.’’
Where part 9 applies, FEMA has
always incorporated natural
environment, social concerns, and
economic aspects into the 8-step process
as part of the practicability analysis.
Specifically, if the minimization
measures for a proposed action were
found to be ‘‘unreasonable,’’ that may
fall under the economic aspect of the
practicability analysis. In these
instances, FEMA has not proposed
automatic seizure or destruction
procedures in the regulatory text or
policy. FEMA also works with program
applicants to consider the appropriate
service life for the action during the 8step decision-making process to better
understand the flood risks and safety
prioritization for individual actions.
Comment: A commenter asked if
FFRMS would be used as a selection
tool for grant projects. The commenter
noted that FEMA has previously
considered a project’s scope or service
area for funding and stated the increase
in floodplains from NOAA Atlas 14
revised flood maps would limit federal
funding for some projects due to
previous design criteria used on the
downstream channels or development.
FEMA Response: FEMA will not use
the FFRMS flood elevation as a
selection tool for grant projects; rather,
it is a design requirement for grant
projects. Issues related to or impacting
a project’s scope or service area remain
unchanged. Finally, FEMA disagrees
with the commenter’s statement that
revised flood maps would limit federal
funding for some projects. Revised flood
maps where the floodplains increase
would have no effect on project
eligibility.
Comment: One commenter inquired
whether the agency’s findings would be
beneficial to the ‘‘central Arizona
project’’ given the dangers of flooding to
the canal.
FEMA Response: FEMA appreciates
the commenter’s interest in this
regulation. The FFRMS CISA State of
the Science Report provides a review
and update of the best-available,
actionable science that can support
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application of the Climate-Informed
Science Approach (CISA).262 FEMA
respectfully refers the commenter to the
State of the Science Report and other
tools to determine whether the FFRMS
policy initiative more broadly may have
an impact on a local project of interest.
FEMA’s part 9 controls the agency’s
implementation of Executive Order
11988, as amended, and Executive
Order 11990.
Comments: Some commenters
requested FEMA consider implementing
the FFRMS for the NFIP. Another
commenter requested FEMA require
disclosure of past flood damages for
FEMA-funded residential projects.
FEMA Response: As explained above,
FEMA cannot accommodate the
commenter’s request to integrate the
FFRMS into the minimum floodplain
management standards for the NFIP
because it is beyond the scope of this
rulemaking. The NFIP is a program
through which property owners in
participating communities can purchase
Federal flood insurance as a protection
against flood losses. In exchange, a
community must adopt and enforce
floodplain management regulations that
incorporate NFIP minimum floodplain
management criteria developed by the
Administrator. Further information
regarding FEMA’s minimum floodplain
management standards for the NFIP can
be found at 44 CFR part 59 et seq. Any
update to those standards would require
a rulemaking to revise the appropriate
regulatory sections of the CFR. By
contrast, the FFRMS, as implemented by
this rulemaking, only applies to actions
where FEMA funds are used for new
construction, substantial improvement,
or repairs to address substantial damage
to structures and facilities.
Requiring disclosure of past flood
damage for FEMA-funded residential
projects is beyond the scope of this
rulemaking. However, FEMA notes
disclosure of prior flood damage, flood
claims or losses, and the status of
repetitive loss properties is important,
and FEMA is pursuing options to
require such disclosure, as evidenced in
FEMA’s 2023 legislative proposal
submitted to the 118th Congress.263
262 Available at https://www.whitehouse.gov/wpcontent/uploads/2023/03/Federal-Flood-RiskManagement-Standard-Climate-Informed-ScienceApproach-CISA-State-of-the-ScienceReport.pdf?trk=public_post_comment-text (last
accessed Jan. 24, 2024), https://www.fema.gov/
floodplain-management/intergovernmental/whitehouse-flood-resilience-interagency-working-group
(last accessed Jan. 24, 2024), and posted to the
public docket for this rulemaking at https://
www.regulations.gov/document/FEMA-2023-00260007.
263 See https://www.fema.gov/flood-insurance/
rules-legislation/congressional-reauthorization/
legislative-proposals (last accessed Jan. 24, 2024).
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57001
N. Accessibility
In the NPRM, FEMA requested
specific comment on accessibility
issues. FEMA sought 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. FEMA
invited comments on strategies the
agency could employ to ensure
accessibility requirements were met for
properties that would be impacted by
the rule. Additionally, FEMA invited
comments on the cost and benefits of
such strategies, including data that
supported the costs and benefits. FEMA
received five comments on accessibility.
Some commenters provided FEMA with
recommendations on strategies
regarding accessibility, while other
expressed concerns with potential
increased costs of accessibility and
elevation along with potential conflicts
regarding accessibility laws.
Comments: One commenter
recommended FEMA consider
accessibility concerns as a factor in
favor of selecting alternatives that
minimize residential and essential
structures within the floodplain. The
commenter also stated projects should
be designed to maximize both access
and resilience by practicing avoidance
to the extent practicable, consistent with
Executive Order 11988. Another
commenter recommended FEMA issue
design and regulatory guidance to
address concerns or challenges over the
effects of proposed elevations on
accessibility of covered facilities,
particularly those intended for use by
disabled and elderly populations and
stated guidance could ensure that
floodproofing would not hinder
accessibility. A third commenter noted
that elevating structures was not always
feasible, practical, or advisable and that
seeking to meet both elevation and
accessibility requirements created even
more challenges and increased costs,
sometimes rendering certain projects
infeasible. Referencing HUD’s Fair
Housing Act’s guidance on BFE
challenges, the commenter
recommended FEMA recognize the
impracticability of requiring elevation
in certain situations consistent with
HUD’s guidance. The commenter cited
increased cost concerns and unintended
consequences on individuals who rely
on accessible housing.
Some commenters stated FEMA’s
request for comment on accessibility
concerns indicated a conflict with
implementation of the FFRMS and laws
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governing accessibility. One commenter
stated FEMA admitted the rule could
potentially conflict with several acts
aimed at protecting vulnerable
populations such as the disabled and
elderly. Another commenter stated the
agency indicated the proposed rule
threatened to violate the Fair Housing
Act, the Americans with Disabilities
Act, the Architectural Barriers Act, and
section 504 of the Rehabilitation Act of
1973 and recommended FEMA identify
and either exclude or limit these
scenarios when applying the proposed
standard.
FEMA Response: Through the final
rule, FEMA seeks to prioritize
minimizing the impact of floods on
human health, safety, and welfare,
including those of vulnerable
populations. FEMA’s request for
comment in this area focused on ways
the agency could further reduce or
mitigate the impacts of the FFRMS
implementation on these populations.
Accessibility concerns would generally
fall under social concerns and legal
constraints in assessing practicability in
the 8-step process. FEMA considers
both the accessibility of a structure and
the accessibility to community
resources for those impacted. FEMA
only takes action in the floodplain if
there is no practicable alternative.
Further, if an alternative would render
a building inaccessible, it would not be
a practicable alternative. FEMA agrees
with one of the commenters that proper
guidance can help reduce the impacts of
elevation on accessibility. FEMA’s
existing guidance documents address
concerns associated with the effects of
elevation on accessibility. FEMA may
address any additional specific concerns
regarding FFRMS implementation as
they arise on a case-by-case basis or via
additional guidance.264
FEMA appreciates the importance of
providing affordable, accessible
housing. FEMA believes that the
agency’s policy approach provides
flexibility to address these concerns. For
example, construction of ADAcompliant access facilities or ramps is
an eligible cost for FEMA’s HMA
structure elevation and mitigation
reconstruction projects for homes.
FEMA considered the costs and benefits
associated with this rule, including the
overall increased costs of FEMA
264 See e.g. ‘‘Hazard Mitigation Assistance
Guidance,’’ pgs. 59–60 available at https://
www.fema.gov/sites/default/files/documents/fema_
hma_guide_08232023_v1.pdf (last accessed April 2,
2024), ‘‘Public Assistance Program and Policy
Guide, pg. 151 available at https://www.fema.gov/
sites/default/files/documents/fema_pappg-v4updated-links_policy_6-1-2020.pdf (last accessed
Mar. 12, 2024).
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Comment: Commenters requested
additional clarification and
recommended edits to the alternatives
detailed in the RIA. Specifically, two
commenters stated FEMA should
consider alternatives to the proposed
standard and the various FFRMS
approaches. The commenters stated that
analyzing alternatives would include
identifying cases where imposing the
standard would create new risks and
costs greater than the risk the standard
sought to mitigate. The commenters
further requested FEMA delay the final
rule until these analyses were
completed.
FEMA Response: Executive Order
11988, as amended, directs agencies to
perform or fund actions within or
affecting floodplains only if those
actions are the only practicable
alternative. Through the 8-step process
for individual actions, FEMA considers
alternative locations, alternative actions,
nature-based solutions, and the no
action alternative under the
practicability analysis. If there is no
practicable alternative, FEMA will
perform or fund the action and will
minimize any adverse impacts when
doing so.
On a project basis, FEMA has
consistently leveraged benefit-cost
analysis in grant programs requiring
evaluation of cost effectiveness, such as
those programs under Hazard Mitigation
Assistance, and will continue to do so
along with minimum standards for
floodplain management across the
agency’s programs to help ensure that
Federally funded projects are both costeffective and result in more resilient
communities. Additionally, during the
8-step process, FEMA will also evaluate
the impacts from the proposed action
(in Step 4) when determining the
appropriate resilience or minimization
measures in Step 5. The flexibility of the
8-step process allows FEMA to work
with SLTTs to select the appropriate
minimization measure for the action.
FEMA requires that only practicable
means to minimize harm to or within
the floodplain are required for
compliance with 44 CFR 9.11, including
consideration of economic aspects. If, in
the course of implementation, FEMA
identifies categories of projects for
which the standard proves to be
generally impracticable, FEMA may take
appropriate action—such as issuing
further guidance—at that time.
FEMA believes that the benefits of
preventing property damage and
potentially saving lives justify the costs
of the rule. These benefits are a result
of the improved protection of structures
and facilities due to increased elevation
and floodproofing standards in FEMA’s
implementation of the FFRMS. This rule
will help to ensure that Federal
investments are better protected from
flood damage, and that the natural
values of floodplains are preserved.
Comment: A commenter stated the
RIA did not present information on the
population at risk, or the residual risk
to human life associated with each
FFRMS approach. The commenter
stated that FEMA should follow the
requirements of the Principles and
Requirements for Federal Investments in
Water Resources (March 2013) and
accompanying Interagency
Guidelines 266 to provide information to
265 See https://www.regulations.gov/document/
FEMA-2023-0026-0013. Specifically, see section
7.11.5 ‘‘Elevation Requirement Impacts on THUs.’’
266 Available at https://obamawhitehouse.
archives.gov/sites/default/files/final_principles_
and_requirements_march_2013.pdf (last accessed
projects, in the regulatory impact
analysis provided on the public docket
for this rulemaking.265 FEMA believes
that the benefits of preventing property
damage and potentially saving lives
justify the costs of the rule. These
benefits are a result of the improved
protection of structures and facilities
due to increased elevation and
floodproofing standards in FEMA’s
implementation of the FFRMS. This rule
will help to ensure that Federal
investments are better protected from
flood damage, and that the natural
values of floodplains are preserved.
FEMA notes any increased costs are
generally eligible for funding under
FEMA’s assistance programs subject to
cost share requirements, including
accessibility needs.
Regarding other conflicting laws, the
commenters do not accurately state
FEMA’s position. FEMA sought
comment on how the implementation of
FFRMS may interact with specific
legislation and strategies FEMA could
employ to ensure accessibility needs
were met. FEMA’s policy approach
provides flexibility to accommodate the
specific needs of the vulnerable
populations the commenter references,
and FEMA believes the 8-step process
requirements, specifically in
considering the practicability of an
action and potential impacts from the
action, detailed above help resolve
accessibility concerns.
O. Regulatory Impact Analysis
Comments
FEMA received several comments
specific to the agency’s RIA associated
with the rulemaking.
1. Alternatives
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owners and residents of flood-prone
property the residual flood risk and
availability of flood insurance. The
commenter recommended that FEMA
provide an estimate of the population at
risk by FFRMS approach and an
estimate as to how this would change by
approach.
The commenter also requested
information on FEMA’s statements in
the RIA regarding potential for lives
saved by the rulemaking. The
commenter stated that FEMA provided
statistics on the number of fatalities
from flash and river flooding but was
unable to estimate how many of those
fatalities would be avoided if the
rulemaking were implemented. The
commenter also stated that FEMA did
not provide a quantification that would
allow for a comparison among the
FFRMS approaches. The commenter
wrote that FEMA did not clarify
whether the CISA would be safer than
the FVA or 0.2PFA or whether elevating
and floodproofing properties were
necessarily safer than the no action
alternative. The commenter further
stated that floodproofing and elevation
could instill a false sense of security
that encouraged people to not evacuate
or delay their departure in a flood. The
commenter recommended that FEMA
provide additional information in the
RIA on this topic and include nonquantified costs to acknowledge it was
conceivable that elevation and
floodproofing could result in an
increase in lives lost if those efforts
provide a false sense of safety to the
public.
FEMA Response: FEMA is leveraging
Executive Order 11988, as amended,
and the Revised Guidelines for the
FFRMS rulemaking and the FFRMS
implementation. The Principles and
Requirements for Federal Investments in
Water Resources and the accompanying
Interagency Guidelines (PR&G) do not
generally apply to this rulemaking;
rather, those requirements apply to
actions associated with water
development projects.267 FEMA will
Jan. 24, 2024) and https://obamawhitehouse.
archives.gov/sites/default/files/docs/prg_
interagency_guidelines_12_2014.pdf (last accessed
Jan. 24, 2024).
267 See ‘‘Principles and Requirements for Federal
Investments in Water Resources at pg. 1, (Mar.
2013) available at https://obamawhitehouse.
archives.gov/sites/default/files/final_principles_
and_requirements_march_2013.pdf (last accessed
Apr. 29, 2024) (‘‘It is intended that these Principles
and the supporting Requirements and Guidelines be
applied to a broad range of Federal investments that
by purposes, either directly or indirectly, affect
water quality or water quantity’’); see also and
‘‘Interagency Guidelines,’’ available at https://
obamawhitehouse.archives.gov/sites/default/files/
docs/prg_interagency_guidelines_12_2014.pdf (last
accessed Apr. 29, 2024).
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apply the PR&G requirements to those
specific actions as applicable, namely
those actions where FEMA is taking an
action associated with a water
development project. Although the
PR&G does not generally apply to this
rulemaking, FEMA notes that the 8-step
process includes public notice
requirements detailed for steps 2 and 7,
as further detailed in part 9.
Regarding the commenter’s comment
about how FEMA did not provide a
quantification that would allow for a
comparison among the FFRMS
approaches, FEMA showed the
comparison in Tables ES–12 and ES–13
within the RIA. These tables present the
cost, transfer payments, and benefit
estimates by FFRMS approach—where
available data allow—and also present
estimates of costs, transfers, and benefits
by grant program for CISA, FEMA’s
primary approach.
FEMA added more text to the
qualitative analysis within the benefits
section of the RIA accompanying this
final rule to further address the
commenter’s concerns regarding risk to
human life and whether elevating or
floodproofing properties under any of
the FFRMS approaches is safer than
taking no action. FEMA included a
description of qualitative benefits,
which included the potential for lives
saved, savings in time and money from
a reduced recovery period after a flood,
increased safety of individuals,
increased public safety, reduced
personal and community impacts, and
reduction in future health issues related
to flooding. FEMA does not believe that
it would be appropriate to refrain from
taking this action based on the
commenter’s suggestion that the rule
could instill a false sense of security.
The commenter provided no evidence
on this point, and FEMA does not
believe it would be appropriate to fund
less resilient projects in an effort to
avoid making people feel secure in the
event of a flood.
As explained in the NPRM, the CISA
is FEMA’s preferred policy approach, as
FEMA believes it has the potential to be
the best and most well-informed
approach to building resilience in an
equitable manner and ensuring a
reduction in disaster suffering. CISA is
designed to meet current and future
estimates of flood risks unique to the
location and thus provide the best
overall resilience, cost effectiveness,
and equity.
With regard to the commenter’s
recommendation that FEMA provide an
estimate of the population at risk by
FFRMS approach, FEMA cannot
correlate population risk by floodplain
expansion. FEMA could not use
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Geographical Information System (GIS)
data, as the database identifies whether
a project was in the floodplain, but
because it did not categorize projects
according to their location, FEMA was
not able to distinguish projects located
in coastal areas from those located in
non-coastal areas. Additionally, the
dataset does not break out multiple
project worksites.
FEMA notes the agency’s current
alternatives analysis process
incorporates consideration of a range of
flood mitigation practices. FEMA
considers the following alternatives: (a)
no action; (b) alternative locations; and
(c) alternative actions, including
alternative actions that use natural
features or nature-based solutions.
When practicable, FEMA avoids actions
within the floodplain. The flood
minimization measures found in § 9.11
are reliable methods of providing
resilience to structures. FFRMS flood
resilience measures consider both
current and future flood risks to better
protect Federal investments. The
elevation requirement in § 9.11(d)(3)
applies to structures and also allows
floodproofing for non-residential
structures. The FFRMS policy provides
further explanation for structures that
must be located within the FFRMS
floodplain must be elevated or
floodproofed to the FFRMS flood
elevation. Additionally, the policy
clarifies facilities can use elevation or
any other appropriate minimization
measure to protect the facility against
the FFRMS flood elevation.
Minimization can include measures
such as ensuring the impacted public
knows their flood risk and has
awareness of flood evacuation
procedures.
2. Discount Rates
Comment: Two commenters requested
FEMA implement the revised 2 percent
discount rate from OMB Circular A–4
for this rulemaking to represent future
benefits more accurately. Another
commenter requested clarification on
the discount rates used in the RIA. That
commenter recommended FEMA state
that the analysis was conducted using
the prescribed 7 percent discount rate
and requested FEMA provide a
sensitivity analysis using a 3 percent
discount rate and a 10 percent discount
rate if appropriate.
FEMA Response: The new OMB
Circular A–4 discount rate is effective
March 1, 2024, for regulatory analyses
received by OMB in support of
proposed rules, interim final rules, and
direct final rules, and January 1, 2025,
for regulatory analyses received by OMB
in support of other final rules. The
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FFRMS proposed rule was published on
October 2, 2023. Given this timing,
FEMA is using the previously
established discount rate and is not
applying the new OMB Circular A–4
discount rate to this final rule. For the
RIA, FEMA provided discounted values
using both 3 percent (social rate of time
preference) and 7 percent (opportunity
cost of capital) based on the version of
OMB Circular A–4 that was in place at
the time of publication of the NPRM.
Comment: A commenter requested
several clarifications on the discount
rates that were used within the RIA,
including the discount rate used to
generate the figures in Appendix E
(Benefits). The commenter questioned
why both the 3 and 7 percent discount
rate for benefits were used within the
analysis when the 50-year present value
benefit uses a single 7 percent discount
rate. And they sought clarification on
how the 7 percent discount rate was
used for benefits.
FEMA Response: FEMA utilizes a 7
percent discount rate for benefits, while
the table(s) referenced uses both 3 and
7 percent discount rates. The benefits
per structure consist of a 50-year stream
of benefits, discounted to the year that
the structure is constructed using a 7
percent discount rate. Since the RIA
estimates 10 years’ worth of projects,
those benefits must be discounted again
from the year of construction to the
present (i.e., to the beginning of Year 1)
and annualized for comparison with 10
years’ worth of costs. FEMA conducted
its discounting from the year of
construction to the beginning of Year 1
and conducted its annualization using
both 3 and 7 percent discount rates, per
the version of OMB Circular A–4 that
was in effect at the time of
publication.268 FEMA has clarified this
in this RIA.
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3. Costs
Comment: A commenter requested
clarifications and provided
recommendations regarding
administrative costs in the RIA.
Specifically, the commenter asked for
clarification on the administrative costs
in tables 85 and 86 of the RIA, which
summarize the low and high estimated
impacts of the rule, stating these costs
were shown as being the same for all of
the alternatives in those tables while the
RIA stated a range for the administrative
costs. The commenter also requested
clarification on table ES–12 and other
tables that omitted administrative costs
268 OMB
Circular A–4, Regulatory Analysis,
September 17, 2003, pages 33–34. Available at:
https://www.reginfo.gov/public/jsp/Utilities/a-4.pdf
(last accessed Apr. 29, 2024).
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from the undiscounted total dollar
figures while those costs were included
in the undiscounted costs in tables 64–
69 which show total costs by FFRMS
approach. The commenter requested
FEMA reconcile the issue. The
commenter stated FEMA acknowledged
there would be annual administrative
costs but only included those costs in
the economic analysis for the first 10
years of the period of the analysis. The
commenter recommended FEMA either
include annual administrative costs as
they apply after the initial 10-year
period or explain why they would no
longer be included.
FEMA Response: The administrative
costs are different in tables 85 and 86 in
the RIA provided with the NPRM.
FEMA created a range for estimating the
administrative costs for two
circumstances: (1) if all projects used
the interagency Federal flood standard
support tool (low estimate, as
represented in Table 85) and (2) if all
projects used the Job Aid (high estimate,
as represented in Table 86) for the first
10 years under the CISA. In reality, the
administrative costs will likely fall
somewhere between the low and high
estimates. These tables are still tables 85
and 86 in the RIA. Further, tables 64–
69 show the costs of the three different
approaches (CISA, FVA, and 0.2PFA),
which include the administrative costs
to show the total cost under each
approach.
Table ES–12 is a summary table that
shows the costs of each approach so that
the reader can see the various options
next to each other. The administrative
cost is separated out because if FEMA
added the administrative cost to each
approach, it may be misinterpreted as
triple counting. To address the
commenter’s concerns, FEMA included
footnotes in Table ES–12 and Table ES–
13. FEMA also removed the term ‘‘total’’
from the costs section within Table ES–
12 and Table ES–13 as they are not the
total cost as they do not include the
administrative cost. The reader should
add each individual approach to the
FEMA administrative cost to obtain the
total costs in Section 7.12. For example,
CISA + FEMA administrative = total
CISA cost.
FEMA examined the number of
projects that will be subject to the
requirements in the first 10 years after
the rule’s publication. FEMA’s analysis
focuses on the costs, benefits, and
transfer payments (i.e., impacts on
FEMA grants) that will result over a 50year period from the application of the
requirements of the final rule to those
projects, for a total period of analysis
spanning 60 years. The costs and
transfers occur in the first 10 years of
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the 60-year period because that is when
the initial investment to elevate or
floodproof those projects takes place.
This is an upfront cost that occurs when
the project is constructed. However, the
benefits of the final rule are estimated
over the 50-year useful life of the
affected structures.
Comment: A commenter
recommended FEMA use a more general
cost index such as the Gross Domestic
Product-Implicit Price Deflator (GDP–
IPD) or an appropriate construction cost
index instead of the U.S. Department of
Labor’s Bureau of Labor Statistics
Consumer Price Index (CPI) to establish
a 2021 common dollar basis.
FEMA Response: FEMA used CPI in
majority of the analysis within the RIA,
such as to adjust historical grant
obligation amounts to constant dollars.
However, FEMA used an Engineering
News Record (ENR) Construction
Costs 269 factor to adjust the
construction values to 2021 costs within
the NPRM RIA. The ENR was used to
represent the change in costs from 2016
to 2021. The value selected was a
national cost average. This value is
consistent with the approach used to
calculate the initial construction costs,
which applied the national average
square foot cost. The adjustment factor
from 2016 to 2021 applied was 1.17 or
a 17% increase in construction costs
over the period analyzed. FEMA used
the same ENR data for the final rule’s
RIA but adjusted it to 2022 costs. While
other sources indicated a larger range of
construction cost increase, the ENR
value was selected in the 2022 report as
a lower-bound approach to the benefits
analysis.
Comment: A commenter stated that
FEMA acknowledged the costs of
operating and maintaining elevation and
floodproofing projects were not
included in the RIA but instead were
zeroed out. The commenter stated that
while additional costs for operating and
maintaining an elevated structure would
be low, the costs for floodproofed
structures could be substantial if
floodproofing entailed generator/
pumping stations. The commenter
stated the omission was particularly
glaring given the 50-year design life of
the project and recommended FEMA
include some reasonable estimate of
these costs rather than zeroing them out,
though the commenter did not provide
any such estimates. The commenter also
stated the RIA was incomplete without
information on the estimated costs of
269 Construction Cost Index History. Engineering
News Record (ENR). Available at: https://
www.enr.com/economics/historical_indices/
construction_cost_index_history (last accessed:
Mar. 18, 2024).
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improving the flood resilience of
facilities; however, the commenter did
not provide a data source to use for
estimating the cost of increased flood
resilience for facilities.
FEMA Response: FEMA appreciates
the commenter’s concerns. FEMA
requested available data that would
assist FEMA in estimating the impact of
the proposed increased flood resilience
standards on specific types of facilities,
including examples showing the cost of
similar resilience measures, case
studies, or other relevant information.
FEMA did not receive any data. Instead,
FEMA discusses the non-quantifiable
costs within Qualitative Discussion of
Additional Potential Costs section.
FEMA was able to quantify the number
of facilities that would be impacted by
the rule as well as the incremental costs
of applying the FFRMS to these
facilities. FEMA conducted the analysis
on facilities based on the best available
information. FEMA acknowledges that
there are lifecycle costs associated with
floodproofing of structures, but these
costs are unique to the type of structure
and floodproofing methods used, and
not generalizable across all potential
projects nationwide. FEMA discusses
these costs qualitatively in Section
7.11.3 of the RIA.
FEMA included a qualitative
summary of the impacts that could not
be quantified, such as increased
resilience standards for facility projects,
additional costs for adding requirements
to buildings with basements, diversion
of projects out of the floodplain,
lifecycle maintenance costs for
floodproofing and project delays and
forgone projects, within the executive
summary and conclusion section.
FEMA discusses facilities and the
challenges with estimating economic
impacts of the FFRMS. Because there
are many methods for making facilities
resilient, and due to the wide variety of
projects considered facilities, FEMA
could not make quantitative estimates of
economic impacts for these projects that
can be applied for all facility types
nationwide.
Comment: A commenter requested
FEMA further explain the omission of
specific quantifiable costs, such as the
costs for projects that may be diverted
out of the floodplain, impacts to projects
with existing basements, project delays,
or foregone projects, that would result
from the rule. The commenter stated
these costs vary in terms of data and
method calculation ability. In particular,
the commenter questioned why impacts
to structures with basements were not
quantified because data are available
about, for instance, the prevalence of
basements geographically and depth-
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damage functions for structures with
basements, as well as information from
the Census of Construction. The
commenter also questioned whether
diversion out of the floodplain is a cost
of the rule because, presumably, a
project would only be diverted if a
project owner determined that net
benefits would be higher without the
project in the floodplain.
FEMA Response: FEMA identified
these as data limitations because the
agency does not generally track the
information referenced by the
commenter. For example, FEMA does
not track project applications where the
applicant withdraws their application
for Federal funding due to floodplain
considerations.
In addition, FEMA appreciates the
commenter providing data sources for
structures with basements and has
considered this data. These data sources
provide national-level summary
statistics and geographic information on
structures with basements. FEMA is
unable to apply this data to FEMA’s
project level data, since FEMA
databases do not include fields for
structures with basements, and FEMA is
unable to correlate the Census of
Construction data with its own projectlevel data. Additionally, this data
pertains to residential construction, and
only a small number of FEMA actions
subject to the FFRMS are residential
construction.
4. Benefits
Comment: A commenter requested
clarification on the discrepancy on
‘‘Appendix E: Benefits Net Present
Value’’ heading on page 213, which
would appear to indicate that Tables 1–
18 display the Net Present Values, but
the column headings in these tables are
labeled ‘‘. . . Present Value
Benefits. . . .’’ The commenter stated
that the various values presented in said
tables are elsewhere presented as
Benefits rather than Net Benefit, as seen
in a comparison of Table 84 with Tables
17 and 18 of Appendix E.
FEMA Response: The tables
referenced by the commenter show the
Present Value of the benefit streams
expected from implementation of this
rule. FEMA updated the table headings
and footnotes as appropriate.
Comment: A commenter requested
clarification on how the results of the
analysis were presented in tables.
Specifically, the commenter questioned
the presentation of a single estimate for
benefits the FFRMS approaches in the
conclusion, the lack of monetization for
benefits discussed qualitatively, how
none of the FFRMS approaches have a
positive net benefit, and how there was
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no rationale for not selecting 0.2PFA as
the preferred approach, as the
commenter calculates it is the FFRMS
approach with the greatest net benefit.
FEMA response: The benefits are not
the same for all of the FFRMS
approaches. FEMA could not quantify
every cost and benefit associated with
this rule. However, FEMA was able to
quantify the number of structures and
facilities that would be impacted. FEMA
quantified a portion of the benefits for
the CISA for all PA Category E projects
that are subject to the FFRMS.
Specifically, FEMA estimates the
present value benefits of one additional
foot of freeboard for the 50-year useful
life of PA Category E projects
undertaken during the 10-year period of
analysis, with the assumption that there
will be a 59-inch SLR.
FEMA was only able to estimate
quantitative benefits for PA Category E
projects affected using CISA. FEMA
cannot compare quantitative benefits to
the costs for IA or HMA, since FEMA
does not have a reliable data source to
estimate the benefits for projects
covered by these programs; HMA data
cannot be broken out by building types
and IA data is limited to residentialrelated projects, which are not included
in the 2022 report. The table that the
commenter created making such a
comparison to demonstrate that 0.2PFA
is the FFRMS approach has the highest
net benefits is not accurate. The present
value of benefits using CISA is not the
same as the present value of benefits
using FVA or 0.2PFA, as the number of
projects impacted by each approach
varies. FEMA did estimate the impact
on PA projects for FVA, 0.2PFA and
CISA in sections 7.14.2.1 through
7.14.2.6 within the RIA. However, these
estimates cannot be applied to IA and
HMA projects for the reasons stated
above. In addition, there are additional
costs and benefits that FEMA could not
quantify for this analysis so FEMA
discussed them in a qualitative manner.
For example, qualitative benefits
include the potential for lives saved,
savings in time and money from a
reduced recovery period after a flood,
increased safety of individuals,
increased public safety, reduced
personal and community impacts, and
reduction in future health issues related
to flooding.
Accordingly, FEMA is unable to use
the commenter’s table to select the
‘‘alternative with the greatest net
benefits’’ as the commenter stated, since
the table is not inclusive of all of the
rule’s quantified and unquantified
benefits.
Comment: A commenter sought
clarification about how FEMA
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compared the costs and benefits within
the RIA. The commenter stated that it
appeared as if the costs pertaining to
‘‘14,427 PA, IA, and HMA structures’’
are being associated with, or charged to,
the benefits associated with ‘‘1,173 PA
Category E projects.’’
The commenter also expressed
confusion over how FEMA used +5-ft
freeboard for costs and then used +1-ft
freeboard for benefits. The commenter
asserted that the statement ‘‘FEMA does
not have data to quantify the benefits of
additional freeboard’’ was confusing
because depth-damage functions are
available. They presumed that this
would account for CISA’s poor
economic performance relative to the
other approaches.
FEMA Response: FEMA’s quantitative
benefit estimates are based on a 2022
report that analyzed the benefits of 1
foot of additional freeboard for various
building types. FEMA used this report
to quantify the benefits of 1 foot of
freeboard, as this was the only data that
was available. This allowed FEMA to
monetize the benefits of an additional
foot of freeboard for non-residential PA
projects (i.e., Category E projects).
FEMA was unable to use the benefits
study to estimate the benefits for HMA
and IA projects, since HMA data cannot
be broken out by building type, and IA
data is limited to residential projects.
Accordingly, FEMA’s analysis
acknowledges that when comparing the
total monetized costs and benefits of the
rule, it is an imperfect comparison: the
total monetized costs are attributable to
elevating or floodproofing PA, IA, and
HMA structures between 1 and 5 feet
(depending on the FFRMS approach
used and the location of the project),
while the total monetized benefits are
attributable to elevating or floodproofing
PA projects one additional foot.
FEMA does not claim that the benefits
to PA Category E projects are associated
with, or charged to, any of the other
projects in this analysis. FEMA was able
to estimate costs for PA, HMA, and IA,
but only able to quantify benefits for PA
Category E. FEMA expects benefits for
all types of projects but does not have
sufficient data for a quantitative
estimate.
FEMA could not apply depth-damage
functions to these projects, since they
are only applicable to elevation or
floodproofing at specified levels above
the base flood elevation for specified
flood zones. FEMA’s project databases
only identify whether a project is in the
1 percent annual chance floodplain and
do not show what flood zone a project
is located in. Because of this, FEMA
cannot apply depth-damage functions to
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individual projects to determine the
benefits from elevation or floodproofing.
FEMA supplements the monetized
benefits with a qualitative discussion of
additional benefits that FEMA could not
monetize. Specifically, FEMA identified
qualitative benefits, including
reductions 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.
Comment: A commenter requested
clarification about how FEMA would
determine the necessary height to
maximize net benefits for a given project
under CISA. Specifically, the
commenter asked what assumptions
FEMA would use (e.g., a 59-inch SLR,
an 8.5 RCP) to determine elevations that
result from ‘‘using the best-available,
actionable hydrologic and hydraulic
data and methods.’’
FEMA Response: In the RIA, FEMA
provided a summary of the estimated
benefits per building type for PA
projects. The analysis included both
mitigation types (elevation and
floodproofing) for 8-inch, 39-inch, and
59-inch SLR and both mitigation types
for 4.5 and 8.5 RCP. For FEMA’s
primary estimate, FEMA used 59 inches
of SLR due to it being the closest SLR
option to the vertical rise, in accordance
with FEMA’s CISA+5-ft assumption.
CISA is the preferred approach for the
FFRMS if the data are available. Since
5 feet is equivalent to 60 inches (5 × 12
inches per foot), 59-inch SLR is the
closest SLR option that FEMA had
available for this portion of the analysis.
However, in practice, FEMA’s FFRMS
policy sets minimum elevation
requirements to account for possible
changes in future flood hazards and
therefore, under the CISA, the elevation
or floodproofing height would vary by
location and criticality of the project. As
explained above, FEMA is relying on
the FFRMS CISA State of the Science
Report to determine what CISA data is
actionable and available and will use
the FFRMS Job Aid methodology to
determine the CISA, FVA, and 0.2PFA
for FFRMS actions. The FFRMS CISA
State of the Science Report 270 discusses
270 FFRMS CISA State of the Science Report, pg.
22, available at https://www.whitehouse.gov/wpcontent/uploads/2023/03/Federal-Flood-RiskManagement-Standard-Climate-Informed-ScienceApproach-CISA-State-of-the-ScienceReport.pdf?trk=public_post_comment-text (last
accessed April 4, 2024). The report recommends
that agencies use the latest interagency Federal
guidance for regionally-based SLR projections. The
underlying SLR science reported used for the report
is based on the IPCC AR6 which uses shared
socioeconomic pathways (SSPs) rather than the
older Representative Concentration Pathways
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the SLR scenarios and what factors to
consider when selecting the appropriate
SLR projection. The FFRMS Job Aid
recommends using the intermediate SLR
scenarios for non-critical actions and
intermediate-high SLR scenarios for
critical actions.271 As part of initial
implementation, FEMA intends to
leverage the FFRMS Job Aid as
explained above.
Comment: A commenter requested
clarification regarding a footnote in the
RIA’s Executive Summary, in which
FEMA explains the scope of its analysis
is limited to impacts from affected
projects in the initial 10 years. The
commenter questioned the validity of
the analysis under the assumption that
the analysis relied on a sample of a
larger set and recommended that FEMA
coordinate with water resource agencies
for additional data on elevation and
floodproofing.
FEMA Response: This commenter is
misinterpreting the footnote. The
footnote is explaining why FEMA has
limited the analysis to impacts from
projects in only the initial 10 years of
the rule’s implementation. It is not
saying that the cost analysis is relying
on a sample (the first ten years of
implementation) of a larger set (the
period of time in which the regulation
would be in effect) as suggested.
Comment: One commenter wrote that
the rule increased the efficiency and
financial benefits of Federal investments
and that it would be irresponsible to
continue spending taxpayer dollars
based on a backwards-looking
assessment of flood risk. The
commenter agreed with FEMA’s
assessment that the benefits of the rule
justified the rule’s costs. The commenter
requested FEMA provide a more
comprehensive and accurate accounting
of benefits in the RIA and quantify and
monetize a wider range of benefits,
although the commenter did not provide
any specific suggestions for doing so.
The commenter noted that many of the
RIA’s unquantified benefits were of
profound importance to communities
and families residing in the floodplain,
including lives saved, access to
evacuation routes and essential services,
better long-term health outcomes, and
reduced recovery times. Additionally,
the commenter recommended FEMA
(RCPs). The five SLR scenarios described in Sweet
et al. (2022), page 10, are based on global mean sea
level (GMSL) target values at 2100. These sea level
scenarios are related to but distinct from the
emissions pathway scenarios in the IPCC AR6. The
intermediate SLR scenario corresponds to a GMSL
target value in 2100 of 1m and the intermediatehigh SLR corresponds to GMSL target value in 2100
of 1.5M.
271 FFRMS Job Aid, pg. 21.
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place greater emphasis on describing,
quantifying, and monetizing the benefits
of conserving floodplains and wetlands
and encouraging nature-based solutions.
Finally, the commenter suggested FEMA
consider a more nuanced approach to
the final rule’s distributional effects by
assessing how the rule’s benefits might
be distributed across populations.
FEMA Response: While monetizing
the reduction in damages that is
anticipated from the rule would be a
useful way to show the rule’s benefits,
not all of the benefits can be effectively
monetized with available data. FEMA
thoroughly researched methods to
quantify and monetize as many benefits
as possible for the proposed rule but did
not find adequate sources to reliably
quantify or monetize most benefits.
FEMA continues to research methods
and data for quantifying benefits, but
since publication of the proposed rule,
has not found data sources that would
enable FEMA to further quantify the
benefits of incremental amounts of
freeboard. In addition, FEMA did not
receive any data or methods from
commenters that would allow FEMA to
quantify what it found to be
unquantifiable impacts. Accordingly,
consistent with direction by OMB
Circular A–4 for costs and benefits that
are difficult to quantify, FEMA provided
a literature review of relevant benefits
that could be realized from flood
mitigation, an analysis of benefits
quantified for the rule, a qualitative
description of additional benefits that
could be realized from the rule, and a
discussion of why FEMA was unable to
quantify such benefits.
Regarding the commenter’s
recommendation to assess how the
rule’s benefits might be distributed
across populations, FEMA agrees that
ensuring equal access to FEMA funding
for PA, IA, and HMA projects is
important. The projects affected by this
rule will be a subset of—only new
construction or substantial
improvement—projects currently
funded through these programs.
Accordingly, current FEMA initiatives
address these concerns. For example,
FEMA has an agency-wide initiative
focused on reducing barriers and
increasing opportunities so all people,
including those from vulnerable and
underserved communities, can get help
when they need it. Additionally, FEMA
reviews all proposed FEMA-funded
actions for potential disproportionate
and adverse human health and
environmental effects on communities
with environmental justice concerns
using a standardized environmental
justice compliance review process.
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5. Benefit Cost Analysis (BCA)
Comment: A commenter sought
clarification of the term ‘‘cost-effective’’
within the RIA.
FEMA Response: FEMA added the
definition of cost-effectiveness used
within the RIA as ‘‘any alternative or
measure whose discounted benefits are
greater than its discounted costs’’ within
the RIA to clarify this. FEMA
acknowledges that it is possible define
cost-effectiveness as ensuring the most
efficient use of a given amount of
resources, but notes that the definition
in the RIA is consistent with BCA
principles applicable to some FEMA
grant programs.
Comment: A commenter stated that
the gross omissions in the ‘‘BCA’’ render
it useless, if not misleading as a BCA.
The commenter referenced guidelines at
both 40 CFR 1502.22 and Chapter III of
Principles, Requirements and
Guidelines for Water and Land Related
Resources Implementation Studies
(PR&G). The commenter did not provide
data that would allow FEMA to fill the
stated ‘‘omissions.’’
FEMA Response: The commenter
appears to be using the term ‘‘BCA’’ to
refer generally to FEMA’s regulatory
impact analysis pursuant to E.O. 12866
and comparing the analysis to NEPA
guidelines and PR&G. To the extent the
commenter is referring generally to
FEMA’s regulatory impact analysis,
FEMA recognizes that it has limitations
based on available data, and provided
qualitative analysis where it could not
complete a quantitative analysis. OMB
Circular A–4—the operating guidance
for regulatory analysis conducted
pursuant to E.O. 12866—acknowledges
that it may not be possible to express in
monetary units all of the important
benefits and costs.272 Circular A–4
directs that if monetization is not
possible, agencies should explain why
and present all available quantitative
information, and if agencies are not able
to quantify the effects they should also
present a description—along with
strengths and limitations—of the
unquantified effects.
FEMA adhered to this guidance.
Although FEMA could not estimate the
cost of the rule for facilities due to the
highly project-specific nature of
facilities projects, and the numerous
options for making them resilient,
FEMA was able to quantify the number
of impacted facilities and explained
why monetization was not possible.
FEMA was unable to estimate the
number of projects that would use each
FFRMS approach per FEMA’s policy,
and so FEMA conducted an analysis
assuming each FFRMS approach was
the only one to demonstrate the range of
possible costs. For benefits, FEMA
acknowledged that the quantified
estimates—where data allowed for
quantification—represent only a portion
of the increased risk reduction that will
be achieved through this rule and
discussed qualitatively other important
benefits of the rule. When considering
the total costs of the rule, FEMA noted
that its choice of CISA as its preferred
approach will use the best available and
actionable scientific data to tailor future
flooding risk to each project, ensuring
that projects are built only to the
elevation necessary and thus
maximizing net benefits.
Comment: A commenter stated that
the RIA did not comply with Circular
A–4’s requirements to present the net
benefits for the different alternatives
and provide a threshold or incremental
analysis supporting the selection of
FEMA’s preferred alternative.
FEMA Response: As discussed above,
Circular A–4 acknowledges that it may
not be possible to express in monetary
units all of the important benefits and
costs. It notes that when important
benefits and costs cannot be expressed
in monetary terms, the calculation of net
benefits is less useful, and ‘‘can even be
misleading,’’ because in such cases, the
calculation of net benefits do not
provide a full evaluation of all of the
relevant benefits and costs. Instead,
Circular A–4 advises that in such
circumstances agencies should exercise
‘‘professional judgment’’ in determining
how important the non-quantified
benefits and costs may be in the context
of the overall analysis.273
As the commenter points out, Circular
A–4 acknowledges that agencies
‘‘should also consider conducting a
threshold analysis to understand the
potential significance of these factors to
the overall analysis.’’ FEMA considered
including a threshold analysis, but such
an analysis still would not have
provided insight into the difference
between the benefits of CISA, FVA, and
0.2PFA as data available to estimate
quantitative benefits was limited to only
one foot of freeboard for PA structure
projects. The difference in unquantified
impacts between the FFRMS approaches
would result in comparison of
thresholds comprising different sets of
impacts. Accordingly, FEMA used its
272 OMB Circular A–4, Regulatory Analysis,
September 17, 2003, pages 33–34. Available at:
https://www.reginfo.gov/public/jsp/Utilities/a-4.pdf
(last accessed Apr. 29, 2024).
273 OMB Circular A–4, Regulatory Analysis,
September 17, 2003, page 10. Available at: https://
www.reginfo.gov/public/jsp/Utilities/a-4.pdf (last
accessed Apr. 29, 2024).
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professional judgment to determine that
CISA is the best policy decision because
it is meant to ensure that amount of
additional flood protection for each
project is determined by the best
available, actionable hydrologic and
hydraulic data and methods that
integrate current and future changes in
flooding based on climate science.
Comment: A commenter stated that
the FFRMS RIA does not comply with
the requirements for a CostEffectiveness Analysis (CEA) as detailed
in OMB Circular A–4.
FEMA Response: FEMA recognizes it
has limitations in the available data and
agrees the RIA was not intended to be
a CEA, as defined by OMB Circular A–
4. FEMA notes that OMB Circular A–4
provides agencies with a choice of
analytical approaches for regulatory
analysis and does not require agencies
to perform a CEA.274 As mentioned
above, FEMA provided qualitative
analysis where it could not complete a
quantitative analysis, as allowable
under OMB Circular A–4. FEMA was
unable to conduct a CEA because FEMA
only had data available to estimate
quantitative benefits of only 1 foot of
freeboard for structures under the PA
program. FEMA did not have data
available to conduct the same
quantitative analysis for projects under
the IA and HMA grant programs or for
additional levels of freeboard as
applicable under each of the FFRMS
approaches. Therefore, FEMA
completed a Benefit Cost Analysis as it
is more appropriate for this rulemaking
given the wide range of unquantifiable
benefits expected to accrue from each
alternative.
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6. Other RIA Comments
Comment: FEMA requested public
comment on any available data,
examples showing the costs of similar
resilience measures, case studies, or
other relevant information that would
assist FEMA in estimating the
magnitude of the impact of the FFRMS
on specific types of facilities. A
commenter recommended contacting
the ‘‘four water resource agencies’’
identified as ‘‘USACE, BuRec, DOE–
TVA, and NRCS,’’ to what information
in their current databases or relevant
studies might be useful.
FEMA Response: FEMA appreciates
this suggestion. FEMA has engaged with
the U.S. Army Corps of Engineers
(USACE), the Bureau of Reclamation
(BuRec), the Tennessee Valley Authority
274 OMB Circular A–4, Regulatory Analysis,
September 17, 2003, pages 9–10. Available at:
https://www.reginfo.gov/public/jsp/Utilities/a-4.pdf
(last accessed Apr. 29, 2024).
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(TVA),275 and the National Resources
Conservation Service (NRCS), and none
of the agencies had relevant data or
studies in relation to facilities that
FEMA could use for this economic
analysis. While such agencies—like
FEMA—have access to some
information on making facilities more
resilient to flooding,276 it is still not
possible to use this information to
generate estimates of the likely marginal
cost of FFRMS implementation across
FEMA-funded facility projects. The
variety of projects, and unique
characteristics of construction and
repair of these projects does not allow
FEMA to make estimates that can be
broadly applied.
Comment: A commenter stated that
the RIA is subject to the Principles and
Requirements for Federal Investments in
Water Resources March 2013. The
commenter stated the RIA was
inconsistent with the requirements of
that document and supporting PR&G.
Specifically, the commenter stated the
RIA did not make any representation as
to any alternatives that maximize public
benefits relative to costs and failed to
provide any representation of net public
benefits. The commenter also stated the
preferred alternative was not clearly
defined and the commenter
recommended FEMA disclose
assumptions made and address
uncertainties associated with the
composition of the preferred
alternatives consistent with the PR&G.
FEMA Response: As explained above,
the PR&G does not generally apply to
this rulemaking; rather, the PR&G
applies to actions associated with water
development projects. FEMA will apply
the PR&G only to those specific actions
under part 9 that are actions associated
with a water development project.
Comment: One commenter noted that
the baseline against which FEMA
assessed the costs and benefits of this
rule produced a ‘‘subjective assessment
of the proposed rule’s costs and
275 FEMA assumed the reference to DOE–TVA is
to the Tennessee Valley Authority although FEMA
notes that TVA is not a component of the
Department of Energy.
276 For example, USACE has a suite of resources
on its website related to its implementation of CISA
in its Civil Works Programs which detail how
project delivery teams must consider the effects of
sea level change when formulating, selecting, and
evaluating project alternatives, and how to
characterize potential project vulnerabilities to the
effects of climate change on inland
hydroclimatology. See https://www.iwr.usace.
army.mil/Missions/Flood-Risk-Management/FloodRisk-Management-Program/About-the-Program/
Policy-and-Guidance/Federal-Flood-RiskManagement-Standard/. However, this information
did not include relevant data that FEMA could use
in its economic analysis related to the costs of
implementation for facilities.
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benefits.’’ Specifically, the commenter
stated that because FEMA said it was
unable to conduct an analysis of the
rule’s effects separate from the effects of
FEMA’s recently implemented partial
interim policies for Public Assistance
(PA) and Hazard Mitigation Assistance
(HMA) that the pre-guidance baseline it
used was a ‘‘less-representative’’
analysis of the rule’s costs and benefits.
FEMA Response: FEMA conducted its
analysis under the pre-guidance
baseline that considered the holistic
effects of the partial interim policies for
PA and HMA, as well as the proposed
rule. At the time the Notice of Proposed
Rulemaking (NPRM) RIA was
conducted, these partial implementation
policies had been in place for less than
2 years, which is an insufficient period
to provide adequate data for analysis.
These policies were issued as
temporary, partial implementation of
the FFRMS until FEMA could
implement it through this rulemaking.
FEMA conducted the Regulatory Impact
Analysis against a pre-statutory baseline
to capture the economic impacts of the
FFRMS and more accurately measure
the impacts of the rule against the world
without the interim PA and HMA
policies. Therefore, FEMA was unable
to complete an in-depth analysis of the
impact of these interim policies.
Accordingly, FEMA used a pre-guidance
baseline for this final rule to measure
the impacts of the rule against the world
without the interim PA and HMA
policies.
Comment: A commenter provided
several clarification edits.
FEMA Response: FEMA thanks the
commenter for these suggestions. FEMA
has added these clarifications to the RIA
and updated the language as suggested.
Comment: A commenter suggested
rounding dollar figures to an
appropriate level of significance.
FEMA Response: FEMA appreciates
this suggestion. FEMA adjusted the
figures in the analysis, where feasible
and appropriate.
Comment: A commenter stated that
for the CISA floodplain analysis, the
mid-point of +1′ and +10′ is +5.5′ would
round to 6′. They recommend against
characterizing the +5-ft CISA level as
the mid-point.
FEMA Response: FEMA updated the
RIA to clarify this was rounded down to
5-ft.
Comment: A commenter
recommended deleting the ‘‘minimum,
moderate, and maximum’’ for the SLR
qualifiers throughout the document as
the reader could come to a
misunderstanding that the totality of the
range for SLR rise is encompassed by
the 8″ and 59″ figures.
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FEMA Response: FEMA removed the
terms minimum, moderate and
maximum from 8-inch, 36-inch, and 59inch, respectively as suggested.
Comment: A commenter stated that a
footnote in the Executive Summary of
the RIA could be misleading, as it stated
that ‘‘the United States has suffered
more than $1.7 trillion in flood-related
damages over an approximately 40-year
period.’’ The commenter noted that
FEMA included tropical cyclones as a
flood-related damage and stated that
tropical cyclones entailed substantial
wind making the $1.7 trillion figure
potentially misleading.
FEMA Response: FEMA clarified
within the footnote that severe storms
can include wind-related damages, but
the data does not separate these
damages out.
Comment: A commenter sought
clarification on the use of ‘‘Federal
Investments,’’ stating that FEMA’s use
of the term might encompass actions
taken by other agencies such as water
resource agencies.
FEMA Response: FEMA’s rule only
applies to projects it funds under its
grant programs. All other Federal
agencies will implement the FFRMS
using their own processes and
procedures. FEMA made clarifications
in the RIA to clarify use of the term
‘‘federal investments.’’
Comment: A commenter suggested
editorial changes to refer to ‘‘9.11’’ as 44
CFR 9.11 as it was unclear when it is
standing alone.
FEMA Response: FEMA appreciates
this clarification. FEMA made this
change to 44 CFR 9.11.
Comment: A commenter suggested
editorial changes to Table ES–14.
FEMA Response: FEMA appreciates
this suggestion. FEMA edited the RIA to
reflect the commenter’s requested
changes.
Comment: A commenter corrected
miscited footnotes.
FEMA Response: FEMA appreciates
this suggestion. FEMA updated the
footnotes as suggested by the
commenter.
Comment: A commenter suggested
removing page reference within a
footnote as the footnote did not address
avoided loss as stated in the RIA.
FEMA Response: FEMA typically
includes a page number so that the
readers can easily find the referenced
source. FEMA updated the page citation
to properly reflect the location in the
document.
Comment: A commenter suggested
reconciliation of different statements in
the text in the bottom paragraph on page
17, Table ES–1, and the text in the
second paragraph in the RIA regarding
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how FEMA analyzed the impact of each
FFRMS expansion option as they are not
consistent with one another.
FEMA Response: FEMA appreciates
this suggestion. FEMA edited the
document for consistency as suggested.
Comment: A commenter
recommended re-titling Table ES–1
within the RIA since it was not
consistent with its introductory text in
the last paragraph on page 17.
FEMA Response: FEMA appreciates
this suggestion. FEMA clarified the title
to table ES–1.
Comment: A commenter
recommended editorial changes to Table
ES–3 within the RIA so that the rows
were properly aligned.
FEMA Response: FEMA appreciates
this suggestion. FEMA corrected this for
the final rule.
Comment: A commenter
recommended making editorial changes
to the RIA and to use quotations around
statements that were verbatim from an
outside source.
FEMA Response: FEMA appreciates
this suggestion. FEMA has gone through
the document and made the
recommended changes.
Comment: A commenter
recommended FEMA edit a statement of
present values, as present values are
discounted by definition.
FEMA Response: FEMA appreciates
this suggestion. FEMA removed the
term undiscounted from the benefit
statements for clarity purposes.
Comment: A commenter
recommended FEMA edit the RIA to
avoid confusion between discount rates
and annual increases, providing an
example within the Executive Summary
of the RIA.
FEMA Response: FEMA clarified the
wording to prevent confusion on the
discount rates with annual increases.
Comment: A commenter pointed out
inconsistency with the annualized CISA
costs within Table ES–13 and ES–14.
FEMA Response: FEMA updated all of
the costs for the final rule and
reconciled this discrepancy.
Comment: A commenter requested
FEMA delete an introductory sentence
in RIA section 6.14 that states flooding
is ‘‘by far the most common natural
disaster type in the United States.’’ 277
The commenter noted that NOAA
distinguishes flooding as a category
separate from tropical cyclones and
storms which were both identified as
having greater frequencies than
flooding. The commenter also opined
that storm damages are more properly
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associated with wind damage than with
flooding.
FEMA Response: FEMA appreciates
the commenter’s concerns and deleted
the sentence. Categorizing and
calculating damage for different disaster
types can be quite complex; however,
the methodology set forth in the benefits
section of the RIA is not dependent on
resolution of these complexities.
Further, it is not necessary to prove that
flooding is the most common natural
disaster type to state, as FEMA has in
section 6.14 of the RIA, that there are
benefits to mitigating against flooding.
Comment: A commenter requested
rationale on why FEMA selected a 10year period for the RIA. The commenter
also recommended FEMA change
language in the RIA to state that the
agency limited the dollar-valuation to
the projects impacted in the first 10
years following the rule’s publication or
expand the analysis to reflect economic
concerns over the expected life of the
regulation. The commenter stated
additional discussion was needed
regarding future effects and provided a
number of questions around those
effects including whether development
within the floodplain would be
progressively more likely to be diverted
outside the floodplain over time and
whether the costs of elevating or
floodproofing would be expected to
decline over time in real terms as
contractors and architects adapt to the
new requirements. The commenter
asked whether it would be most
appropriate to simply state that the first
10 years of the analysis was viewed as
being a sample for the entire period or
if the use of the maximum 8.5 RCP and
the 59-inch SLR indicated a 50-year life
for the regulation was suspected and
that a shorter period of analysis was in
order.
FEMA Response: FEMA appreciates
the commenter’s concerns regarding the
analysis period. FEMA has clarified
language throughout the RIA to further
address the commenter’s concerns.
FEMA conducted the regulatory
analysis using its standard 10 years of
historical data and, based on this data,
estimated the number of affected
projects for the first 10 years after
implementation of the rule. Circular A–
4 directs that the timeframe for an
agency’s analysis ‘‘should cover a
period long enough to encompass all the
important benefits and costs likely to
result from the rule.’’ FEMA believes
estimating the number of affected
projects over the initial 10 years and
benefits over their 50-year useful life
captures all the important benefits
(protection from flooding) and costs
(construction costs) likely to result from
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the rule because FEMA does not expect
a change in the types of costs or benefits
after this time period. FEMA
acknowledges that flooding is widely
expected to increase in frequency and
severity in the future,278 so estimating
the number of affected projects and their
associated benefits farther into the
future would become increasingly
inaccurate as conditions change and the
expected frequency and severity of
disasters increases. However, due to
increased flooding frequency and
severity, FEMA believes that the
benefits of increasing the protection of
structures in the future is expected to
continue to justify the cost of doing so
beyond the 10-year timeframe that
FEMA used for this analysis.
Regarding other future effects such as
diversion of projects outside of the
floodplain, FEMA notes that this is
discussed within the RIA in the
Qualitative Discussion of Additional
Potential Costs section. The effect of the
rule could be to divert some projects out
of the floodplain. However, it is not
possible to state with a reasonable
degree of certainty how many projects
this will affect, or the costs or benefits
associated with diverting these projects
out of the floodplain, as FEMA does not
currently track this information. The
costs and benefits, and the decision to
build inside or outside of the floodplain,
will be dependent on the specific
location or characteristics of a property
or project.
Comment: A commenter stated that
they could not find the ‘‘2022 Benefits
Analysis of Increased Freeboard for
Public and Nonresidential Buildings in
Riverine and Coastal Floodplains’’ file
at regulations.gov under docket ID
FEMA–2023–0026.
FEMA Response: FEMA verified that
all of the supporting documents were
listed on the site during the comment
period, including the report
referenced.279
Comment: A commenter pointed out
confusion with the footnote ‘‘25 FEMA’s
project level data for IA, PA, and HMA
delineate whether projects are in the
Special Flood Hazard Area (1 percent
annual chance floodplain) but do not
show whether they are in the 0.2
percent chance floodplain’’ because
FIRMs characteristically identify both
the 1 percent annual chance floodplain
278 The Third National Climate Assessment.
https://nca2014.globalchange.gov, (last accessed
Apr. 29, 2024).
279 FEMA, A Benefits Analysis of Increased
Freeboard for Public and Nonresidential Buildings
in Riverine and Coastal Floodplains, July 2002,
available at: https://www.regulations.gov/
document/FEMA-2023-0026-0003.
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and the 0.2 percent annual chance
floodplain.
FEMA Response: FEMA agrees that
the 0.2 percent annual chance
floodplain, in locations where that
floodplain is mapped, is available on
FIRMs. However, the data availability
issue noted in the footnote is that
FEMA’s project databases (e.g., IA, PA,
HMA) do not include FIRM data, so
FEMA is not able to accurately
determine whether a project is in the 0.2
percent chance floodplain. FEMA’s
project level data only indicate whether
a project is located in the SFHA in most
cases. Project databases do not contain
accurate geolocation data, and addresses
on file are for the recipient’s address,
which may not be the project location,
so FEMA was unable to locate projects
on a FIRM, or determine which flood
zone a project was located in.
Comment: A commenter stated that
FEMA’s preferred policy approach is
not clearly defined, as it consists of an
unidentified mixture of CISA, FVA, and
0.2PFA, which requires the reader to
speculate and make assumptions about
the composition in order to draw
conclusions. The commenter suggested
FEMA discuss the uncertainty
associated with the composition of the
FFRMS approaches that comprise
FEMA’s preferred policy approach.
FEMA Response: FEMA selected CISA
as the preferred policy approach, since
FEMA believes it has the potential to be
the best and most well-informed
approach to building resilience in an
equitable manner and ensuring a
reduction in disaster suffering. CISA is
designed to meet current and future
estimates of flood risks unique to the
location and thus provide the best
overall resilience, cost effectiveness,
and equity. FEMA added clarification
on what the primary approach is earlier
in the RIA.
FEMA acknowledges that its policy—
which requires use of FVA and 0.2PFA
when CISA data are not available and
actionable—will result in an unknown
mixture of projects using CISA, FVA,
and 0.2PFA. OMB Circular A–4 suggests
using central estimates ‘‘where such
information exists’’ but authorizes the
use of upper and lower bounds where
it does not, together with any available
information that might help in
qualitatively determining which
scenario is most likely to occur. FEMA
conducted its analysis to consist of a
range of potential costs, benefits, and
transfers. FEMA analyzed the impact of
the FVA, 0.2PFA, and CISA for each of
the programs, PA, IA, and HMA, as if
each approach were the only FFRMS
expansion option. FEMA discussed that
because the composition of applied
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FFRMS approaches will continue to
change with the addition of CISA data
over time, there is significant
uncertainty in any such estimates.
Accordingly, FEMA estimated the costs
of the requirements for each of the
approaches separately to create upper
and lower bounds estimates of the
possible outcomes. In addition, as
discussed above, FEMA presents CISA
as the primary estimate for the impacts
of the rule because it is FEMA’s
preferred FFRMS approach and
therefore, over time, it will become the
most widely used FFRMS approach.
Comment: A commenter disagreed
with FEMA’s statement about how ‘‘RCP
4.5 and 8.5 are widely accepted
scenarios that represent medium and
low efforts to curb emissions,
respectively.’’ They suggested better
explaining the definitions of RCP 4.5
and 8.5 based on the EPA’s language
about RCPs.
FEMA Response: FEMA appreciates
this suggestion. FEMA updated the use
of RCP 4.5 and 8.5 and the definitions
for the Final Rule RIA.
Comment: A commenter suggested
explaining the terms ‘‘low estimate’’ and
‘‘high estimate’’ earlier in the RIA. They
also suggested that instead of using a
range, FEMA should present a best
estimate for these values and discuss the
uncertainty associated with such values
in the Risk and Uncertainty section of
the document. They also requested a
sensitivity analysis showing how the
decision might be affected if the values
used proved to be unduly high or low.
The commenter suggested that because
of the number of variables contributing
to the ranges (e.g., discount rate, high
and low), the presentation of
information would be clearer if single,
best-estimate, rounded values were used
in the analysis.
FEMA Response: OMB Circular A–4
suggests using central estimates ‘‘where
such information exists’’ but authorizes
the use of upper and lower bounds
where it does not. In the instances
where FEMA uses a range, it is because
FEMA does not have adequate
justification for a single best estimate.
FEMA conducted its analysis to consist
of a range of potential costs, benefits,
and transfers. For example, as discussed
above, FEMA analyzed the impact of the
FVA, 0.2PFA, and CISA for each of the
programs, PA, IA, and HMA, as if each
approach were the only FFRMS
expansion option because it is unknown
exactly how many projects will be
subject to the FVA, 0.2PFA, or CISA
requirements under the final rule, and
how use of CISA will change as more
data become available over time.
Because FEMA analyzed each approach
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separately, it is unable to provide a
primary estimate, and instead had to
rely on a range of possible impacts. In
addition, FEMA does not have data to
estimate whether certain non-residential
new construction projects will elect to
floodproof or elevate and therefore also
used a range for the cost of meeting the
rule’s increased construction standards.
FEMA appreciates that the
presentation of the range of impacts may
not be as clear as a single point estimate.
FEMA presents this information in
tables, to help more clearly convey the
information, and has also reviewed the
language and streamlined for increased
clarity.
Comment: A commenter provided
editorial suggestions to the statement:
‘‘CISA is the only approach that ensures
projects are designed to meet current
and future flood risks unique to the
location and thus provides the best
overall resilience, cost effectiveness,
and equity.’’ The commenter suggested
the claim that CISA makes such an
assurance is an overstatement of the risk
reduction from the CISA.
FEMA Response: FEMA appreciates
this suggestion. FEMA accepted this
change in part: ‘‘CISA is designed to
meet current and future estimates of
flood risks unique to the location and
thus provide the best overall resilience,
cost effectiveness, and equity.’’
Comment: A commenter provided
suggested edits to FEMA’s statement
regarding whether the action was a
significant regulatory action under
Executive Order 12866, as amended by
Executive Order 14094.
FEMA Response: This is standard
language that FEMA uses in RIAs.
FEMA provided footnotes to this
statement clarifying the relevant
sections of Executive Order 12866.
Comment: A commenter
recommended presenting the CISA-only
analysis as an alternative or explaining
why it was found to be unreasonable
and including it in the section of the
document on alternatives considered
but not selected. If FEMA found a CISAalone approach to be unreasonable, the
commenter recommended changing all
blanket statements in the document that
describe CISA as the best approach for
achieving overall resilience, cost
effectiveness, and equity.
FEMA Response: The CISA is one of
three approaches available under the
FFRMS, and FEMA’s preferred
approach. However, because the CISA
data is not available nationwide, a
CISA-only approach is not currently
feasible, and other FFRMS approaches
are needed for areas where the CISA is
not available. FEMA’s implementation
of the FFRMS allows for the use of the
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most appropriate approach depending
on the data available for a given project.
Although FEMA estimated the impacts
of the CISA for affected programs as if
it were the only FFRMS expansion
option, just as it did for the FVA and
0.2PFA, FEMA was unable to use actual
CISA estimates, as they are not yet
available nation-wide and instead used
an estimate. As the CISA data becomes
more available, FEMA expects it to be
the more widely-adopted. FEMA made
clarifying edits to statements describing
the CISA as the preferred approach.
Comment: A commenter encouraged
FEMA to consider implications of
FEMA’s FFRMS policy on benefit-cost
analyses for flood mitigation assistance
grants.
FEMA Response: FEMA appreciates
the commenter’s concerns. FEMA’s
FFRMS policy will generally not change
BCA requirements for FEMA programs.
Certain Hazard Mitigation Assistance
programs and Public Assistance projects
are subject to a Benefit-Cost Analysis
prior to approval, where the mitigation
action must be determined to be costbeneficial using FEMA’s BCA tool. For
FEMA’s FMA program, the costs of
additional elevation above the base
flood elevation will be considered as
part of the BCA. Currently, the BCA tool
includes pre-calculated benefits that
streamline the cost-effectiveness
determination for structure elevation
projects are limited to structures where
some part of the structure is within the
1 percent annual chance floodplain. For
an elevation project where the entire
structure footprint is outside the 1
percent annual chance floodplain,
FEMA will also require a BCA to show
cost-effectiveness. For FEMA’s PA
program, cost-effectiveness
requirements apply only to Hazard
Mitigation measures on projects to
restore disaster damaged structures and
facilities. FEMA notes that any
increased costs are generally eligible for
funding under FEMA’s assistance
programs subject to cost share
requirements. FEMA acknowledges that
FFRMS requirements may impact
individual BCA results, with the
potential to cause some projects to pass
that otherwise wouldn’t, and vice-versa,
but is not able to predict this for future
individual projects because project-level
analysis is not generalizable nationwide.
For structures, FEMA estimates the
marginal cost of implementing FFRMS
to be relatively low, ranging from 0.32
percent (1 foot of elevation for new
construction) to 8.07 percent (4 feet of
dry floodproofing for a building retrofit)
of total project cost, depending on the
elevation required and the type of
project. Given available evidence
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showing relatively small costs and even
positive increases in Benefit-Cost Ratio
in connection with additional elevation
for studied residential buildings, FEMA
does not expect FFRMS requirements to
adversely affect the BCR for a large
volume of projects.280 281
Comment: A commenter questioned
the baseline data used for the floodplain
expansion analysis in Appendix A. The
commenter stated that FEMA should
have compared the 1’ freeboard
measured to the ‘‘Effective/Preliminary
1 percent annual chance floodplain’’
instead of the ‘‘replotted’’ 1 percent
annual chance floodplain.
FEMA Response: The goal of the
floodplain expansion analysis
performed by FEMA is to estimate the
number of additional projects that
would be affected by a requirement for
a higher vertical elevation, and thus
horizontal expansion, of the floodplain.
When FEMA calculated the FFRMS
floodplains for different freeboard
values, FEMA used the latest highaccuracy ground elevation data. The
original 1 percent annual chance
floodplain boundaries were likely
calculated using older ground elevation
data. For consistency, FEMA compared
the FFRMS freeboard-based floodplains
to a 1 percent annual chance floodplain
redrawn using the new ground elevation
data. This approach provides the most
consistent comparison of the difference
in area between the 1 percent annual
chance floodplain and the FFRMS
floodplain (i.e., specific levels of
freeboard added to the 1 percent annual
chance flood elevations). This approach
does not account for differences
between the redrawn 1 percent annual
chance floodplain boundaries and the
original 1 percent annual chance
floodplain boundaries. Since the goal is
to produce a statistical estimate of the
impact of freeboard, FEMA assumed the
differences between the original 1
percent annual chance boundaries and
the redrawn 1 percent annual chance
boundaries would be largely random
and not essential to the goal of the
estimate.
Comment: A commenter assessed that
FEMA’s statements that a study upon
280 National Institute of Building Sciences. MultiHazard Mitigation Council. ‘‘Natural Hazard
Mitigation Saves.’’ 2019. https://www.nibs.org/files/
pdfs/NIBS_MMC_MitigationSaves_2019.pdf (last
accessed Apr. 29, 2024). See, for example, Table 5:
BCRs for various heights above BFE for new coastal
V-zone buildings and Table 2–2: Summary BCR
results for sampled counties susceptible to riverine
flooding.
281 A Benefits Analysis of Increased Freeboard for
Public and Nonresidential Buildings in Riverine
and Coastal Floodplains. FEMA. Draft, July 2022,
pg. 16, available at: https://www.regulations.gov/
document/FEMA-2023-0026-0003.
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which it relied considered various
levels of SLR ‘‘by 2100’’ is problematic,
as the study does not extend as far as
the year 2100, and it actually only
extends some 60 years into the future.
The commenter sought clarification.
FEMA Response: FEMA would like to
distinguish between the coastal and
riverine flood studies used within the
2022 Report.282 The riverine analysis
considered two climate change
scenarios to evaluate the amount of
increase or decrease in riverine flood
elevations over the next 50 years. These
evaluated two widely accepted
scenarios of the Representative
Concentration Pathways (RCP) 4.5 and
8.5, which represent medium and low
efforts to curb emissions.
The coastal study within the 2022
Report considered 12 different locations
along a hypothetical coastal transect to
evaluate the impact of various wave
conditions in Zone A (areas with wave
heights less than 1.5 feet) subject to
coastal storm surge. The sea level rise
conditions replicated a 2016 evaluation
considered 8-inch, 20-inch, 39-inch, and
59-inch sea level rise by 2100.283 The
sea level rise assumptions are explained
in the 2022 report. Specifically, when
evaluating the increases in flood depths,
the rise scenarios were considered in
10-year increments from 2022 to 2100,
but the evaluation of the benefits is
limited to the 50-year useful life of a
project (i.e., from 2022–2072). The
assumed increase in flood depths is
shown in Table 1 of the report in 10year increments.
Consistent with FEMA’s BCA
guidance,284 FEMA selected the 50-year
project useful life which is the
timeframe evaluated to determine the
cost-effectiveness for a public building
and is consistent with the assumption in
the FEMA BCA Toolkit. FEMA’s
analysis focuses on the costs, benefits,
and transfer payments (i.e., impacts on
FEMA grants), that will result over a 50year period from the application of the
requirements of the final rule to those
projects, for a total period of analysis
spanning 60 years. For example, if a
structure is built in Year 10, the analysis
282 A Benefits Analysis of Increased Freeboard for
Public and Nonresidential Buildings in Riverine
and Coastal Floodplains. FEMA. Draft, July 2022,
pg. 16, available at: https://www.regulations.gov/
document/FEMA-2023-0026-0003.
283 FEMA, 2016 Evaluation of the Benefits of
Freeboard for Public and Nonresidential Buildings
in Coastal Areas. Available at: https://
www.regulations.gov/document/FEMA-2015-00060379.
284 BCA Reference Guide, Appendix D. Project
Useful Life Summary (June 2009). Available at:
https://www.fema.gov/sites/default/files/2020-04/
fema_bca_reference-guide.pdf (last accessed May
15, 2024).
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covers 50 years of costs, benefits, and
transfers for that structure starting in
Year 10. However, if a structure is built
in Year 11, that is outside of the first 10
years, and so the analysis does not
consider the costs, benefits, or transfers
of the FFRMS requirements on that
structure.285
III. Discussion of Changes
This rule makes changes to the NPRM
in response to comments received, as
well as minor technical edits.
Specifically, in § 9.7(c)(3), FEMA made
a clarifying edit by adding the words
‘‘information from’’ before the colon,
such that the sentence reads ‘‘In
obtaining the best available information,
FEMA may consider other FEMA
information as well as other available
information, such as information from:’’
FEMA also edited § 9.7(c)(3)(iv) to
include the National Park Service as an
agency within the Department of the
Interior where FEMA obtains
information. FEMA also edited
§ 9.7(c)(3)(ix) to include Indian Tribal
governments; as revised, this paragraph
now reads, ‘‘Agencies of State, Regional,
and Indian Tribal governments.’’ While
FEMA always considered Tribal
information, the edits further confirm
the agency’s commitment to doing so.
The changes made to § 9.7(c)(3) clarify
that FEMA considers certain relevant
and appropriate data in making the
floodplain determination under part.
FEMA is also making minor technical
edits in § 9.7(c)(1)(i)(C) and
§ 9.11(d)(3)(ii). In § 9.7(c)(1)(i)(C), FEMA
is adding appropriate hyphenation to
state ‘‘0.2-Percent-Annual-Chance Flood
Approach (0.2PFA): The 0.2 percent
annual chance flood’’ for consistency
with the Revised Guidelines. In
§ 9.11(d)(3)(ii), FEMA is correcting a
grammatical error from ‘‘water tight’’ to
‘‘watertight.’’
285 If FEMA limited the analysis to only 10 years
of impacts, it would consider all of the costs and
transfers but only a small portion of the benefits
from additional protection from flood events
because the life of the structure is more than 10
years. After year 10, the final rule would continue
to impact FEMA projects funding new construction,
substantial improvements or repairs to fix
substantial damage. To estimate the future number
of impacted structures, FEMA used the average
number of projects that would have been affected
by this rule had it been in place over the past 10year period, assuming the next 10 years would look
largely like the past 10 years. FEMA chose to limit
the analysis to 10 years of affected structures
because estimating the number of affected projects
and their associated benefits further into the
future—that is, further from historical disaster data
would become less accurate as conditions change
and the expected frequency and severity of major
disasters increases. Accordingly, FEMA’s analysis
focuses on the 50-year impacts of the rule on
projects that take place in the initial 10-year period,
for a total period of analysis spanning 60 years.
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FEMA’s FFRMS policy is also being
finalized with the publication of this
rule and will be effective with the rule’s
implementation. FEMA is making minor
clarifying edits to the FFRMS policy
consistent with commenters’
suggestions by further clarifying the use
of the 0.2PFA in coastal areas and
making other technical edits to the
document for readability. Specifically,
FEMA is making technical formatting
and grammatical edits on pages 1, 2, 3,
4, 7, 8, and 13. FEMA is adding
clarifying language in section C. In
section C.2, FEMA is eliminating the
reference to wave action in coastal areas
at the end of the paragraph. In section
C.3.a, FEMA is adding the following
clarifying text in footnote 14: ‘‘In coastal
areas Flood Insurance Rate Maps
(FIRMs) and Flood Insurance Studies
(FISs) provide 1 percent AC flood
elevations that account for the effects of
wave action. However, 0.2 percent AC
flood elevations are generally stillwater
elevations that do not account for the
effects of wave action. In coastal areas,
if the 0.2 percent AC flood elevation
does not account for the effects of wave
action, the FVA flood elevation must be
used.’’ FEMA is further eliminating
section C.3.c consistent with these edits.
FEMA also edited Figure 1 in the
FFRMS policy to clarify ‘‘AC’’ means
‘‘annual chance’’ at a commenter’s
request and reflect the clarifications to
C.3 referenced above. Additionally,
FEMA updated section G.2 to reflect
‘‘Flood Risk Mitigation for Facilities.’’
FEMA removed the term ‘‘nonstructure’’ in that section because
commenters expressed confusion about
the term.
IV. Regulatory Analyses
A. Executive Order 12866, Regulatory
Planning and Review, as Amended, and
Executive Order 13563, Improving
Regulation and Regulatory Review
Executive Orders 12866 (Regulatory
Planning and Review), as amended by
Executive Order 14094 (Modernizing
Regulatory Review), and 13563
(Improving Regulation and Regulatory
Review), directs 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 costs and benefits, reducing
costs, harmonizing rules, and promoting
flexibility. The Office of Management
and Budget (OMB) has designated this
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rule a ‘‘significant regulatory action’’ as
defined under section 3(f) of Executive
Order 12866, as amended by Executive
Order 14094, but it is not significant
under section 3(f)(1) because its annual
effects on the economy do not exceed
$200 million in any year of the analysis.
Accordingly, OMB has reviewed this
rule.
This analysis provides an assessment
of the potential costs, benefits, and
transfer payments from the Updates to
Floodplain Management and Protection
of Wetlands Regulations to Implement
the Federal Flood Risk Management
Standard (FFRMS) Final Rule. For
further detail please refer to the
Regulatory Impact Analysis (RIA) in the
docket accompanying this rule.
FEMA is amending 44 CFR part 9
Floodplain Management and Protection
of Wetlands and issuing a
supplementary policy 286 to implement
the FFRMS and update the agency’s 8step decision-making process used to
determine whether an action would be
located within or affect a floodplain,
and if so, whether and how to continue
with, or modify, the action.
The FFRMS is a flood resilience
standard that is required for Federally
funded projects and provides a flexible
framework to increase resilience against
flooding and to help preserve the
natural values of floodplains and
wetlands. A floodplain is any land area
that is subject to flooding and refers to
geographic features with undefined
boundaries. FEMA will incorporate the
FFRMS into its existing processes to
ensure that the floodplain for an action
subject to the FFRMS is expanded from
the current 1 percent annual chance
(100-year) floodplain based on the one
percent annual chance elevation 287 to a
higher vertical elevation and
corresponding horizontal floodplain;
and that, where practicable, natural
systems, ecosystem processes, and
nature-based approaches will be
considered when developing
alternatives to locating Federal actions
in the floodplain.
Under current FEMA regulations set
out in 44 CFR part 9, the floodplain is
defined as the 100-year floodplain (1
286 The final rule and policy contain content that
is interrelated but not identical. For purposes of this
analysis, FEMA considers both documents as a
single proposal.
287 The one percent annual chance elevation
refers to the elevation to which floodwater is
anticipated to rise during the 1 percent annual
chance flood (also known as the base or 100-year
flood). Under Executive Order 11988, non-critical
actions must be elevated or floodproofed to at least
the one percent annual chance elevation (or base
flood elevation). Critical actions must be elevated
or floodproofed to at least the 0.2 percent annual
chance flood (or 500-year) elevation.
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percent annual chance) for non-critical
actions and the 500-year floodplain (0.2
percent annual chance) for critical
actions. New construction or substantial
improvement of structures located in a
floodplain must be elevated to or above
the 1 percent annual chance (100-year)
flood level or base flood elevation (BFE).
For critical actions, the new
construction or substantial
improvement of structures must be
elevated to or above the 0.2 percent
annual chance (500-year) flood level.
Non-residential structures may be
appropriately floodproofed rather than
elevated to meet the applicable flood
level.
This rule will implement the
supplemental FFRMS policy in the
expanded floodplain and codify
implementation of the supplemental
FFRMS policy in the current floodplain.
FEMA has interim policies for PA and
HMA that partially implement FFRMS,
as discussed in further detail below.
Depending on the program, these
programs apply the supplemental
FFRMS policy either to the base
floodplain, or to both the 100-year (base
floodplain) and 500-year floodplain (for
critical actions). Following guidance in
OMB Circular A–4, FEMA assessed each
impact of this rule against a preguidance baseline. The pre-guidance
baseline is an assessment against what
the world would be like if the relevant
guidance (i.e., the partial interim
policies for PA and HMA) were not
implemented.
At the time the Notice of Proposed
Rulemaking (NPRM) RIA was
conducted, these partial implementation
policies had been in place for less than
2 years. These policies were issued as
temporary, partial implementation of
the FFRMS until FEMA could
implement it through this rulemaking.
FEMA conducted this Regulatory
Impact Analysis against a pre-statutory
baseline to capture the economic
impacts of the FFRMS and more
accurately to measure the impacts of the
rule against the world without the
interim PA and HMA policies.
Under the final rule, the ClimateInformed Science Approach (CISA)
would result in a flood elevation and
corresponding horizontal expansion
floodplain determination utilizing the
best-available, actionable hydrologic
and hydraulic data and methods that
integrate current and future changes in
flooding based on climate science. The
CISA is FEMA’s preferred policy
approach, as FEMA believes it has the
potential to be the best and most wellinformed approach to building
resilience in an equitable manner and
ensuring a reduction in disaster
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suffering. CISA is designed to meet
current and future estimates of flood
risks unique to the location and thus
provide the best overall resilience, cost
effectiveness, and equity. The FFRMS
requires FEMA to consider the
criticality of the action involved, the
availability and actionability of data,
and equity concerns, as further
explained in the supplementary policy.
As actionable climate data are not
currently available for all locations,
FEMA will utilize the Freeboard Value
Approach (FVA) and 0.2-PercentAnnual-Chance Flood Approach
(0.2PFA) alternatives in the absence of
actionable CISA data. Specifically:
• For critical actions: 288 FEMA will
use the higher of the +3-foot FVA
floodplain or the 0.2PFA floodplain.289
Where the 0.2PFA data is not available,
the +3-foot FVA will be utilized.
• For non-critical actions: FEMA will
use the lower of the +2-foot FVA or
0.2PFA.290
The floodplain established by the
FVA is the equivalent of the 1 percent
annual chance floodplain (also known
as the 100-year flood), plus either 2 or
3 feet of vertical elevation, as applicable
based on criticality, and a
corresponding increase in the horizontal
extent of the floodplain. The increased
horizontal extent will not be the same
in every case. When the same vertical
increase is applied in multiple actions
subject to the FFRMS in different areas,
the amount of the increase in the
horizontal extent of the respective
floodplains will depend upon the
topography of the area surrounding the
proposed location of the action.
The term 0.2PFA refers to the
elevation to which floodwater is
anticipated to rise during the 0.2
percent annual chance flood (also
known as the 500-year flood) and the
associated floodplain. The 0.2PFA
generally covers a larger area than the 1
percent annual chance floodplain.
288 A critical action is any activity for which even
a slight chance of flooding would be too great. A
non-critical action is any activity not considered a
critical action.
289 For all projects in coastal areas, if the 0.2
percent annual chance flood elevations do not
account for the effects of wave action, the
appropriate FVA must be used to determine the
FFRMS floodplain.
290 While application of the 0.2PFA may provide
a more consistent reduction of flood risk as it is
probability based, the relationship to the FVA
varies depending on topography (i.e., in some
instances the 0.2PFA may result in a lower flood
elevation than the FVA). Application of only the
0.2PFA without a comparison to the FVA may
result in building to a higher resilience standard
than is necessary.
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Projects that are located near a Special
Flood Hazard Area (SFHA),291 but not
in it, may be in the FFRMS floodplain.
At the time the NPRM was published,
there were no FEMA products depicting
the boundary of the FFRMS floodplain.
For this reason, FEMA and its
interagency partners have developed
and are continuing to develop various
tools, including the FFRMS Floodplain
Determination Job Aid published on
FEMA’s website and in the public
docket with this rulemaking and a webbased decision support tool, Federal
Flood Standard Support Tool (FFSST),
that will provide the agency with guides
to determine which FFRMS floodplain
approach has available and actionable
data, in map form, thus should be used
for each project. The FFRMS Job Aid
helps Federal agencies and their nonfederal partners (including potential
Federal financial aid recipients) conduct
a screening to determine if a proposed
Federally funded action will be located
within an FFRMS floodplain, based on
any of the three approaches in
accordance with Sec. 2(a)(1) of
Executive Order 11988, as amended.
FEMA will leverage the FFRMS Job Aid
for determining the FFRMS floodplain
when the final rule is implemented.
FEMA will continue to collaborate
across the Federal government to
continue to develop the FFSST to
facilitate the implementation of the
CISA and the FFRMS.
FEMA developed a flexible approach
to implementing the FFRMS to
maximize the net benefits—quantified
and unquantified—of the rule. Floods
are expected to be more frequent and
more severe over the next century due
to the projected effects of changing
conditions.292 293 The ocean has
warmed, polar ice has melted, and
porous landmasses have subsided.294
The global sea level has risen by about
8 inches since reliable record keeping
began in 1880.295 It is projected to rise
upwards of 1 to 4 feet by 2100, affecting
many coastal areas.296 297 298 Floods are
291 The Special Flood Hazard Area is the area
designated on FEMA regulatory mapping products
depicting a 1 percent annual chance floodplain.
292 National Oceanic and Atmospheric
Administration. U.S. Department of Commerce.
‘‘Climate change impacts.’’ https://www.noaa.gov/
education/resource-collections/climate/climatechange-impacts. Last accessed February 15, 2022.
293 U.S. Global Change Research Program (2014).
Climate Change Impacts in the United States: The
Third National Climate Assessment. Available at:
https://repository.library.noaa.gov/view/noaa/
19485. Page 20. Last accessed: April 16, 2024.
294 Ibid [page 21].
295 Ibid [page 21].
296 Global Change Research Program (2014).
Climate Change Impacts in the United States: The
Third National Climate Assessment. Available at:
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costly natural disasters; between 1980
and 2022, the United States suffered
more than $2.0 trillion (in 2022 dollars)
in flood-related damages.299 This final
rule will help protect FEMA funded
investments from future floods and will
help minimize harm in floodplains by
changing the standards used to
determine future risk for FEMA-funded
new construction and substantial
improvement, and/or to address
substantial damage to Federally funded
projects.
The requirements of this rule will
apply to grants under FEMA programs
such as Individual Assistance (IA),
Public Assistance (PA), and Hazard
Mitigation Assistance (HMA), as well as
grants processed by FEMA’s Grants
Programs Directorate (GPD) (involving
grants for preparedness activities), for
projects funding new construction,
substantial improvement, or repair of
substantial damage. The primary focus
of this analysis is to estimate the costs
and benefits resulting from a higher
vertical elevation and associated
horizontal expansion of the floodplain
for specific projects paid for with
Federal funds. The expected impacts of
this final rule primarily result from the
cost of the increase in elevation or
floodproofing requirements of structures
in the FFRMS floodplain. The majority
of these costs will be funded by FEMA
through several grant programs. For the
grant programs that have a cost-share
requirement, FEMA grant recipients
typically will bear about 25 percent of
the elevation and floodproofing project
costs. Additionally, FEMA expects to
incur costs for administration of the
FFRMS requirements, including training
FEMA personnel.
To estimate the number of projects
that will be subject to the requirements
of this rule, FEMA used historical PA,
IA, and HMA data. First, FEMA
https://repository.library.noaa.gov/view/noaa/
19485. Page 20. Last accessed: April 16, 2024.
297 Environmental Protection Agency (EPA).
Supplementary Material for the Regulatory Impact
Analysis for the Supplemental Proposed
Rulemaking. ‘‘Standards of Performance for New,
Reconstructed, and Modified Sources and
Emissions Guidelines for Existing Sources: Oil and
Natural Gas Sector Climate Review.’’ Page 36.
https://www.epa.gov/system/files/documents/202211/epa_scghg_report_draft_0.pdf. Last accessed:
September 14, 2023.
298 The EPA uses the Framework for Assessing
Changes To Sea-level (FACTS) and Building Blocks
for Relevant Ice and Climate Knowledge (BRICK)
sea-level rise models for their projections.
299 Climate.gov. ‘‘U.S. billion-dollar weather and
climate disasters.’’ https://www.ncei.noaa.gov/
access/billions/summary-stats/US/1980-2022. Last
accessed October 31, 2023. Flood related damages
are from flooding, severe storms, and tropical
cyclones. Data is CPI adjusted. Severe storms can
include wind-related damages, but the source does
not separate data out by type of damage.
PO 00000
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estimated the number of past new
construction, substantial improvement,
or repairs to substantial damage projects
that are in the existing floodplain. Next,
FEMA relied upon data from samples of
floodplain expansion at varying levels
of freeboard in inland and coastal areas
to estimate an average percentage
expansion of the floodplain under each
of the three FFRMS approaches. FEMA
then multiplied the expansion
percentages by the estimated number of
projects in the current floodplain to
estimate the number of projects that will
be in the expanded floodplain under
each of the FFRMS approaches.
To estimate the cost of the FFRMS
elevation requirements, FEMA used
reports from the National Flood
Insurance Program (NFIP) to determine
the increased cost per square foot
associated with elevation and
floodproofing. FEMA presents the costs
as a range because of uncertainty about
whether new construction projects
would choose to floodproof or elevate.
Finally, to present the total impacts of
the final rule, FEMA analyzed the
impact of the FVA, 0.2PFA, and CISA
for each of the programs, PA, IA, and
HMA, as if each approach were the only
FFRMS expansion option. This is
because it is unknown exactly how
many projects will be subject to the
FVA, 0.2PFA, or CISA requirements
under the final rule, as it will continue
to change with the addition of CISA
data over time. Accordingly, FEMA
estimated the costs of the requirements
for each of the approaches separately.
This allows FEMA to create a range for
each approach. FEMA is opting to use
this methodology because it allows for
estimation of the highest and lowest
probable costs, transfers, and benefits
associated with each of the FFRMS
expansion options for each of the
programs.
FEMA limited its dollar-valuation to
the projects impacted in the first 10
years after the rule’s effective date.300
FEMA’s analysis focuses on the costs,
benefits, and transfer payments (i.e.,
impacts on FEMA grants), that will
result over a 50-year period 301 from the
application of the requirements of the
final rule to those projects, for a total
period of analysis spanning 60 years.
For example, if a structure is built in
Year 10, the analysis covers 50 years of
300 FEMA used an average of the number of
affected projects during the prior 10-year period to
estimate the average annual impacts of the future
10-year period.
301 The 50-year period is based on the 2022
Report, which assumed 50-year useful life for
public buildings. Therefore, FEMA estimated such
benefits over a 50-year period. Please see section
7.14.2 of the RIA for more information.
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costs, benefits, and transfers for that
structure starting in Year 10. However,
if a structure is built in Year 11, that is
outside of the first 10 years and so the
analysis does not consider the costs,
benefits, or transfers of the FFRMS
requirements on that structure.302 The
costs and transfers occur in the first 10
years of the 60-year period because that
is when the initial investment to elevate
or floodproof those projects takes place.
This is an upfront cost that occurs when
the project is constructed. However, the
benefits of the final rule are estimated
over the 50-year useful life of the
affected structures.
The table below provides the
estimated number of structures and
facilities that will be affected by the
final rule over the first 10 years,
assuming that each approach is the only
expansion option. Structures that are
walled and roofed buildings, will
comply with the FFRMS through
elevating or floodproofing to the
required height. Facilities, which are
57015
any human-made or human-placed
items other than structures, such as
roads and bridges, will require different
mitigation measures in order to comply
with the increased resiliency standard
of the final rule. The monetized impacts
of this rule are representative of the
floodproofing and elevation mitigation
measures that will be required of
structures. However, for reasons
explained in more detail later, FEMA
was unable to monetize the impacts of
the rule for facilities.
Table 4: Estimated Number of Structures and Facilities Affected by the Final Rule in Years 1-10 For Each
A roach as if Each A roach Were the Onl Ex ansion O tion1 3 o3 113 o4 1
899
688
1,154
1,434
1,434
7,755
7,712
10,088
9,834
1,924
10,398
13,476
26,144
26,144
26,144
841
841
841
26,985
26,985
26,985
37,073
36,819
40,461
The final rule will increase
construction and resiliency standards
for FFRMS-affected structures and
facilities. FEMA considers
implementing these standards, whether
through higher vertical elevation,
floodproofing, or other mitigation
measures, to be new economic activity
that will result from this rule.
Accordingly, these compliance activities
are categorized as costs of this rule.
FEMA analyzed the impact of the
FVA, 0.2PFA, and CISA for each of the
programs, PA, IA, and HMA, as if each
approach were the only FFRMS
expansion option. FEMA selected the
CISA as the primary approach as it is
the preferred option. Using the CISA as
the primary approach, FEMA has
estimated that this final rule will affect
13,476 PA, IA, and HMA structures over
the first 10 years. The low estimate 305
cost will be between $134.0 million and
$110.4 million, discounted at 3 and 7
percent respectively, with a 60-year
annualized cost between $4.8 million
and $7.9 million, discounted at 3 and 7
percent. The high estimate cost will be
between $169.8 million and $139.9
million, discounted at 3 and 7 percent
respectively, with a 60-year annualized
cost between $6.1 million and $10.0
million, discounted at 3 and 7 percent
respectively. These costs include
additional training for FEMA staff, as
well as the total cost for additional
elevation and floodproofing. FEMA is
unable to quantify the cost for increased
resiliency standards for an estimated
26,985 affected facility projects over the
first 10-year period of the analysis.
Additionally, FEMA is unable to
quantify the cost for projects that may
be diverted out of the floodplain,
impacts to projects with existing
basements, project delays, or forgone
projects that may result from this rule.
Because the cost to implement the
FFRMS mitigation measures will be
shared between FEMA and grant
recipients according to statutory cost
shares, there are also important
distributional impacts. The majority of
these costs will be borne by FEMA
through additional grants (a transfer
from FEMA to grant recipients). Grant
recipients will bear the remaining costs.
Using the CISA as the primary
approach, FEMA estimates that this
final rule will affect 13,476 structures in
the first 10 years. FEMA presents the
change in transfer payments from FEMA
to grant recipients as a range because of
uncertainty regarding whether new
construction projects would be
floodproofed or elevated. The low
estimate ranges between $104.7 million
and $86.2 million, discounted at 3 and
7 percent respectively, with a 60-year
increase in transfers between $3.8
million and $6.1 million annually,
discounted at 3 and 7 percent
respectively. The high estimate ranges
between $134.2 million and $110.5
million, discounted at 3 and 7 percent
302 If FEMA limited the analysis to only 10 years
of impacts, it would consider all of the costs and
transfers but only a small portion of the benefits
from additional protection from flood events
because the life of the structure is more than 10
years. After year 10, the final rule would continue
to impact FEMA projects funding new construction,
substantial improvements or repairs to fix
substantial damage, but FEMA chose to limit the
analysis to 10 years of affected structures because
it used 10 years of historical data, and due to
changing conditions, projecting impacts past 10
years would become less accurate due to an
expected increase in the frequency and severity of
major disasters. Accordingly, FEMA’s analysis
focuses on the 50-year impacts of the rule on
projects that take place in the initial 10-year period,
for a total period of analysis spanning 60 years.
303 From 2013–2022, for PA, FEMA funded a total
of 199,993 projects for $172.6 billion (CPI adjusted
to 2022 dollars). Of that total number of projects,
FEMA funded $22.8 billion (CPI adjusted to 2022
dollars) for all PA Category E projects, which is
about 13.2 percent ($22.8 billion ÷ $172.6 billion)
of the total FEMA PA funding. For PA Category E
projects within the floodplain, FEMA funded $1.2
billion (CPI adjusted to 2022 dollars) which is about
0.7 percent ($1.2 billion ÷ $172.6 billion) of all
FEMA PA funding or 2,437 projects which is about
1.2 percent (2,437 projects ÷ 199,993 projects) of all
FEMA PA projects.
From 2013–2022, for HMA, FEMA funded a total
of 8,761 projects. There are no data fields that show
whether a project is located in a floodplain.
Therefore, FEMA used the assumption that all HMA
projects were located in the floodplain. This may
lead to an overestimate in the costs associated with
HMA projects.
From 2013–2022, for IA, FEMA funded a total of
13,576 THU and 184 PHC projects. FEMA assumed
that 11.1 percent of IA PHC and THU projects
would be located in the floodplain, based on PA
project data. Accordingly, FEMA estimated a 20
(184 PHC projects × 11.1 percent) PHC projects and
1,507 (13,576 THU projects × 11.1 percent) THU
projects in the current floodplain in years 1–10 of
the analysis.
304 These counts are based on the number of
closed or obligated projects at the time of analysis.
It can take several years for a project to close out
or reach the obligation status after the disaster year.
305 FEMA estimated a range of possible costs
since it was not able to accurately estimate the
number of new construction projects that would
elect to elevate versus those that would elect to
floodproof, so estimates are provided for both the
cost of elevating all new construction projects and
the costs of floodproofing all new construction
projects.
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FVA
0.2PFA
CISA
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respectively, with a 60-year increase in
transfers between $4.8 million and $7.9
million annually, at 3 and 7 percent
respectively.
Grant recipients will be responsible
for between $22.6 million and $18.6
million, discounted at 3 and 7 percent
respectively, with a 60-year annualized
amount between $0.8 million and $1.3
million, at 3 and 7 percent respectively
for the low estimate. The high estimate
ranges between $27.8 million and $22.9
million, discounted at 3 and 7 percent
respectively, with a 60-year annualized
amount of $1.0 million and $1.6
million, at 3 and 7 percent respectively.
Not included in these estimates are the
additional grants FEMA will provide or
the additional costs recipients will incur
for their portion of the cost share, for
any of the elevation and floodproofing
costs that FEMA is unable to monetize.
FEMA has been able to quantify
benefits for a small portion of projects
affected by the rule. Using CISA as the
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primary approach, FEMA estimates that
1,154 PA Category E (Public
Buildings) 306 projects will be subject to
the FFRMS in the first 10 years.
Assuming a 59-inch Sea Level Rise,307
FEMA estimates that the present value
benefits of one additional foot of
freeboard for the 50-year useful life of
projects undertaken during the 10-year
period of analysis ranges at the low end
between $56.1 million and $46.2
million, discounted to the beginning of
Year 1 at 3 and 7 percent respectively,
with a 60-year annualized benefit
between $2.0 million and $3.3 million.
306 FEMA Public Assistance. https://
www.fema.gov/fact-sheet/fema-public-assistance-0.
Accessed April 23, 2024.
307 For FEMA’s primary estimate, FEMA used 59
inches of SLR, due to it being the closest SLR
option to FEMA’s +5-ft assumption for CISA. CISA
is the preferred approach for FFRMS if the data are
available. Since 5 ft is equivalent to 60 inches (5
× 12 inches per foot), 59-inch SLR is the closest SLR
option that FEMA has available to use for this
portion of the analysis.
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The high estimate ranges between $66.1
million and $54.4 million, discounted to
the beginning of Year 1 at 3 and 7
percent respectively, with a 60-year
annualized benefit between $2.4 million
and $3.9 million. These quantified
benefits include estimates of avoided
physical damage, avoided displacement,
and avoided loss of function for the
1,154 PA Category E projects over their
50-year useful life. In addition,
unquantified benefits of this final rule
include the reduction in damage to
12,322 affected IA and HMA structures
and their contents from future floods,
26,985 PA and HMA facilities, potential
lives saved, public health and safety
benefits, reduced recovery time from
floods, and increased community
resilience to flooding.
Table 5 shows the summary of the
total costs, benefits, and distributional
impacts of the final rule.
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Federal Register / Vol. 89, No. 133 / Thursday, July 11, 2024 / Rules and Regulations
57017
Adds language to incorporate the best available and actionable science into determinations
for Federally funded projects.
Adds approach to developing the alternative actions, the agency shall use, where possible,
natural. systems, ecosystem processes, andnature-based approaclles.
Updates the dollar thresholds for the applicability of the 8-step process to repairs under
sections 406 and 407 to $18,000 for 2022. Also adds that the thresholds will be adjusted
annually for inflation.
Establishes a process to determine whether the FFRMS action is located in a wetland
and/or afioodplain.
Regulatory and
Incorporates FFRMS approaches into regulations. FEMA's supplementary policy will be
Policy Changes
using CISA as the preferred approach to establishing the FFRMS floodplain and resilience
requirements if the data are available. If CISA is not available, for critical actions, use the
higher of +3 FVA or 0.2PFA floodplain. If0.2PFA data are not available, use +3 FVA.
For non-critical actions, use the lower ofFVA or 0.2PF A floodplain unless the 0.2PFA
does not account for wave action. lf0.2PFA is not available use +2 FVA.
Adds an exception to use of the FFRMS floodplain in limited situations involving national
. security and emergency actions.
Clarification that the minimization standards required of 44 CFR §9 .11 are applicable to
all of FEMA' s grant programs, not just grant programs authorized by the Disaster Relief
Act of 1974.
The FFRMS elevation requirements will apply to those actions subject to the FFRMS in
the applicable FFRMS floodplain. Grant recipients will be required to comply with the
new standard by elevating or floodproofing projects located in the expanded FFRMS
floodplain. Specific grant programs include IA, PA, and HMA. Using CISA as the
primary approach, FEMA limited its dollar-valuation to the projects impacted in the first
Affected Population
IO years after the rule's effective date, FFRMS will impact the following number of
structures: I, 154 PA projects, 1,924 IA projects, and I0,398 HMA projects, for a total of
approximately 13,476 structure projects. FEMA also estimates FFRMS will impact the
following number of facilities: 26,144 PA projects and 84 l HMA projects, for a total of
approximately 26,985 facility projects in years 1-10.
The majority of elevation and floodproofing costs will be funded by FEMA through
several grant programs. Using CISA as the primary approach, FEMA estimates 13,476
affected PA, IA, and HMA structures. Discounted, the low estimate will be between
$104.7 million and $86.2 million, using 3 and 7 percent respectively, with a 60-year
transfer between $3.8 million and $6.1 million annually, at 3 and 7 percent respectively.
Discounted, the high estimate will be between $134.2 million and $110.5 million, using 3
and 7 percent respectively, with a 60-year transfer between $4.8 million and $7.9 million
Transfers
annually, at 3 and 7 percent respectively. These transfer payments will occur in the first
10 years of the 60-year period because that is when the investment in those projects takes
place.
Not included in these estimates are the additional grants FEMA will provide, and
additional costs recipients will incur for their portion of the cost share, for any of the
elevation and floodproofing costs that FEMA is unable to monetize.
.•
1 Using C.ISA as t.he prima,ry apprpach, F.EM.A estima,tesJhat this.final rule wil.1. a,ffect . .
.•.•. ·•· .·.
. .· ·.... •.·
• r 13,1?6 pA, IA, and Hl\1Astnictures\ 01s<;outited, the. low est.ilTlat~ ¢~St for tfH;l$e pfoj~cts\
i. •. ·•··.·• ••• •• • .• .·• ··• ·•·• wjllbe.between$J34,_0. milli?n and$110,1. n:ii1~jo_n 1 using 3.and? ~erceri~.~espectively;•.· ...•.
f
~
•
•.
• ·•
percent; Discbuntea1 the high esthnate co.st f()f these projects wiU be hetween $169:8 .·•· •· ·.•· .
·ct::.~~=:~~~=d~"·j!
l. .• . ~;.·~
. •. . • . .~.~.··•..·.\ •. •• ~.j.•
. . . . . . ·.i.·.:.:~::.:.:·······..•.. • •••. •. ·· • •. ••.
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...... • •·· ·.. . • •. :. •. :,. / • •.• • . ,,·•.. ••. ••. <::, :•, . • ..... ,: . . . • · • ·= • •· ;u••< • •.. •·.:·:
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Sfmt 4725
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..tosts (q~a~ti.tative) ·•. J. w1t11 a oo~year a:nnuallzed c.ost1'etween $4,8 1111Jhon and. $7:?roillion, usmg 3.and 7. .• .•.· •.
57018
Federal Register / Vol. 89, No. 133 / Thursday, July 11, 2024 / Rules and Regulations
1:.cosis··.1;;c1uae"a~.~mon·.i1.frifo1ni£'roi1SeNi'i...statr.'•fot; roFiie¥'i..•itirrio1ijike:FBRMs··:·•···•···•·•····•
·· ,. . ·.... :. •. floodpla.in 9:etermina.tions1 the time for FEM Asta.ff to tnake tloodpla.i'n cletermina.tions, as ,
1
• < w.eH as the CdSt for the adc!ition~l .elevation ~nd flMdprobfirig this rule wouldfequire,. • • . · •
• • .These costs will he incijrred .friJhe ffrst 10 years ~fthe 60-yea.r perfod beca.µ:se that is··..
•
... w.h.e,11 Jhe,JtjYe,stmtin(irtJ~<>§tl p.rQjtl~ts ta.k~s pia.~.~~ ••• • • •
.. DiyersiQI} QfprQJec;ts Q).ltQf~~.e Dooc:iplaJr1: .· .· · ·.· · · ···············.··············.·················•:········ ...... · · :· · :· · ··········:· .....,,,, ..........,. . ,. . , . ..
Increase in i:esflitlncy standard for an estitnated26,98t.affe,cted fac;ility projects over 10 •
Costs (qualitative)
~~;rt{oga.l C()§~SJ()r adc:i~g requ~~lll~rtts t2}~ildirlg ~ithbas~ments • • • • •.
• ••
....
1• ,!JiftlSX<;ltl ~iµ~t1gajlctl cQsts:f9r. t}Q<>fi1miof41g . \ . · • •••• • •• . . .
I PtQj~ct d~la.ysartd fQrg()rt~ projec;ts. .... . . .
. . . . . . . . ..... ... .
FEMA is able to quantify benefits for a portion of projects affected by the rule. Using
CISA as the primary approach, FEMA estimates that 1,154 PA structures will be subject
to the FFRMS over the 10-year period after the rule's publication. Assuming a 59-inch
Sea Level Rise, FEMA estimates the present value benefits of one additional foot of
free board for the 50-year useful life of projects undertaken in the first 10 years after the
rule's effective date. The low estimate ranges between $56.1 million and $46.2 million,
Benefits
discounted to the beginning of Year I, at 3 and 7 percent respectively, with a 50-year
(quantitative)
annualized benefit of$2.0 million and $3.3 million, at 3 and 7 percent. The high estimate
ranges between $66.1 million and $54.4 million, discounted to the beginning of Year I at
3 and 7 percent respectively, with a 50-year annualized benefit of$2.4 million and $3.9
million, at 3 and 7 percent respectively. These quantified benefits include avoided
physical damage, avoided displacement, and avoided loss of function for the 1,154 PA
pr9Jects estimated over the 50-year useful life ofpublic buildirtgs.
Reduction in damage to properties and contents from future floods for approximately
12,322 IA and HMA structure projects and 26,985 PA and HMA facility projects,
Benefits (qualitative) potential lives saved, public health and safety benefits, reduced recovery time from floods,
...... ,.........,. . . . . . .,.. . ,_ _ _ _ _ ,. . and increased community r.~S!!..i..tJ..Qc;e to flooding.
_ _ _ .......,. ....,.,.... ,.,.. . . .
PA Projects
FEMA provides PA grants to public
and certain non-profit entities for the
rebuilding, replacement, or repair of
public and non-profit structures and
facilities damaged by disasters. PA
projects that involve new construction,
substantial improvement, or repairs to
address substantial damage are affected
by this rule. FEMA divides its PA work
into categories A–G.308 Projects that get
funding under PA Categories C (Roads
and Bridges), D (Water Control
Facilities), E (Public Buildings), F
(Utilities), and G (Parks, Recreational
Areas, and Other Facilities) are affected
by this rule, but FEMA is only able to
provide estimates of costs associated
with Category E (Public Buildings).
FEMA has adequate data to estimate the
additional costs for structures subject to
the FFRMS, so monetized impacts are
only available for Category E projects.
The remaining PA categories fund
facilities that are not subject to the same
elevation and floodproofing
requirements as buildings.
44 CFR part 9 classifies projects as
either structures or facilities. Under this
rule, a structure is a walled and roofed
building, including mobile homes and
gas or liquid storage tanks. Structures
will be subject to freeboard
requirements to floodproof or elevate to
a certain level above the BFE. Freeboard
is the additional height above the BFE
to which the structure is floodproofed or
elevated for the purpose of reducing the
risk of flood damage.
In contrast, facilities are any humanmade or human-placed item other than
a structure, including roads, bridges,
power lines, water control facilities, and
other types of infrastructure. Facility
mitigation measures are more varied
and highly project-specific. For
example, damage to roads during flood
events can be caused by numerous
events, such as erosion and scour,
inundation by floodwater, or debris
blockage. Likewise, the mitigation
measures to address the damages can
include a variety of approaches, such as
installing low water crossings,
increasing culvert size, installing a relief
culvert, adding riprap to a road
embankment, and many others.309
308 PA Category A-Debris Removal and Category
B-Emergency Protective Measures do not fund
building or repair of structures and are not subject
to the FFRMS.
309 FEMA. ‘‘FEMA B–797 Hazard Mitigation Field
Book: Roadways.’’ 2010. Available at https://
www.fema.gov/sites/default/files/2020-07/b797_
hazmit_handbook.pdf.
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Due to the highly project-specific
nature of facilities projects, and the
numerous options available for making
them resilient, FEMA cannot estimate
the costs of improving flood resiliency
of facilities. Where FEMA provides
funding for facilities to complete new
construction, substantial improvement,
or repairs to address substantial damage,
the projects must incorporate
minimization measures that will
consider the FFRMS flood elevation.
However, floodproofing and elevation to
a specific height may not be appropriate
as a minimization measure for facilities,
depending on the facility. FEMA cannot
estimate the cost due to the variability
of those measures, which may include
a variety of approaches. Facilities that
are already located in the 1 percent
annual chance floodplain for noncritical actions or 0.2 percent annual
chance floodplain for critical actions
must take resilience measures under
current regulations. Based on 2013–
2022 data, FEMA estimates that about
1,036 Category C projects, 120 Category
D projects, 208 Category F projects, and
314 Category G projects may be affected
by the FFRMS each year.
For PA Category E projects, if the FVA
is the only expansion option, FEMA
estimates the final rule will affect 899
projects over the first 10 years. The costs
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would be incurred in the first 10 years
of the 60-year period because that is
when the investment in those projects
takes place. Accordingly, FEMA
estimated that the average annual costs
in years 1–10 will range between $4.3
million and $5.5 million. The average
Federal cost share for PA projects from
2013–2022 was 85.0 percent.
Accordingly, FEMA estimates that it
will cover 85.0 percent of the cost to
elevate or floodproof PA projects, for a
total of between $3.6 million and $4.7
million in additional grants per year for
the first 10 years. Grant recipients will
bear the remaining cost of between $0.6
million and $0.8 million per year for the
first 10 years.
For PA Category E projects, if 0.2PFA
is the only expansion option, FEMA
estimates the final rule will affect 688
projects over the first 10 years. Because
these costs are incurred in the first 10
years, FEMA estimated the average
annual costs in years 1–10 will range
between $2.5 million and $3.2 million.
Using the historical average 85.0 percent
Federal cost share, FEMA estimates that
it will cover 85.0 percent of the cost to
elevate or floodproof PA projects, for a
total of between $2.1 million and $2.8
million in additional grants per year for
the first 10 years. Grant recipients will
bear the remaining costs of
approximately $0.4 million and $0.5
million per year for the first 10 years.
<_ .--__--•----__ _ ; FEMA's portion (grants
---- ____- > ! from FEMA to reci ients
[\ -•
• .:
For PA Category E projects, if CISA is
the only expansion option, FEMA
estimates the final rule will affect 1,154
projects over the first 10 years. Because
these costs are incurred in the first 10
years, FEMA estimated the average
annual costs in years 1–10 will range
between $10.4 million and $14.5
million. Using the historical average
85.0 percent Federal cost share, FEMA
estimates that it will cover 85.0 percent
of the cost to elevate or floodproof PA
projects, for a total of between $8.9
million and $12.3 million in additional
grants per year for the first 10 years.
Grant recipients will bear the remaining
cost of between $1.6 million to $2.2
million per year for the first 10 years.
i
!Recipients.' portion_•-•-_------~~~-~$~64_-~o!!Q} / -••·- > < •--
$2,102,944 ;
: Annual cost (Years 1-10)
$3,241,488 •
$3,631,259
$5,549,873
!.
57019
$311~108 f
$8,869,053 !
.$(565:zmj
$14,497,988
i
IA Projects
Individual Assistance (IA) grants are
provided to individuals who, as a direct
result of a disaster, have necessary
expenses and serious needs that they are
unable to meet through other means. IA
funding is divided into Housing
Assistance and Other Needs Assistance.
Other Needs Assistance under IA
provides financial assistance for
medical, dental, childcare, funeral,
personal property, transportation, or
other necessary expenses or serious
needs and is not subject to FFRMS
requirements. Under Housing
Assistance, FEMA may provide
temporary housing assistance (financial
assistance or direct assistance in the
form of temporary housing units), a
capped amount of financial assistance
for the repair or replacement of disasterdamaged private residences; and, in rare
circumstances, financial or direct
assistance to construct permanent or
semi-permanent housing.
The financial caps on housing repair
or replacement assistance means IA
grants do not generally fund new
construction or substantial
improvements. However, two types of
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IA grants are affected by the final rule:
IA Permanent Housing Construction
(PHC) projects, and sales and disposal of
temporary housing units (THUs). PHC is
Federal assistance that FEMA provides
under IA for the purpose of constructing
permanent housing where alternative
housing resources are unavailable or
scarce. IA also includes the sale and
disposal of THUs such as mobile
housing units and recreational vehicles;
THUs located in the FFRMS floodplain
will be subject to the requirements of
this rule. FEMA regulations prohibit the
floodproofing of residential structures at
or below the BFE, and so elevation is
the only option.310
FEMA has calculated the cost of
elevating PHC structures, depending on
FFRMS approach and location and type
of project.311 FEMA then subtracted
310 See 44 CFR 60.3.
See also Floodproofing. FEMA. Available at:
https://www.fema.gov/glossary/floodproofing. Last
accessed: January 11, 2023.
311 Projects outside of the 1 percent annual
chance floodplain, but below the required level will
need to be elevated to the required level. These
projects require elevations of different levels,
depending on the structure’s current elevation.
FEMA assumes that half of the projects will need
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certain costs that it determined to be
part of the baseline. Specifically,
numerous States and localities have
existing freeboard requirements that
will result in elevation costs and
benefits regardless of this rule, so costs
and benefits for these areas have been
reduced based on existing requirements.
For IA, if the FVA is the only
expansion option, FEMA estimates that
the final rule will affect 1,434 structures
over the first 10 years. These costs
would be incurred in the first 10 years
of the 60-year period because that is
when the investment in those projects
takes place. Accordingly, FEMA
estimates average annual costs of
$57,343 in years 1–10. Since there is no
cost share for IA, FEMA will fund the
entire cost of elevating IA projects
through grants.
For IA, if the 0.2PFA is the only
expansion option, FEMA estimates that
the final rule will affect 1,434 structures
to be elevated 1-ft and the other half or projects will
need to be elevated 2-ft. This assumption was made
because FEMA is unsure of the actual number of
projects that will need to be elevated by 1-ft or 2ft and so assumed that it will be an even proportion
for each height. IA projects is all considered noncritical actions and will not require a 3-ft level.
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High Estimate
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Federal Register / Vol. 89, No. 133 / Thursday, July 11, 2024 / Rules and Regulations
over the first 10 years. Because these
costs would be incurred in the first 10
years of the analysis, FEMA estimates
the average annual cost in years 1–10 is
$57,343. Since there is no cost share for
IA, FEMA will fund the entire cost of
elevating IA projects through grants.
For IA, if the CISA is the only
expansion option, FEMA estimates that
the final rule will affect 1,924 projects
over the first 10 years.312 Because these
costs would be incurred in the first 10
years of the analysis, FEMA estimates
that the average annual cost in years 1–
10 is $168,174. Since there is no cost
share for IA, FEMA will fund the entire
cost of elevating IA projects through
grants.
Table 7: Summary ofFFRMS IA Annual Project Costs and Distributional Impacts by Approach
I
I.
Ill
..
I I I Mi!lllllllilmE•
It . . . . . . . .
I
.....
Annual cost (Yearsl-10)
FEMA's portion (grants from FEMA to recipients)
Recipients' portion
HMA Projects
FEMA provides Hazard Mitigation
Assistance (HMA) grants to States,
territories, Federally-recognized Tribes,
and local communities for the
implementation of hazard mitigation
measures to increase resiliency to
disasters. Hazard mitigation is defined
as any action taken to reduce or
eliminate long-term risk to people and
property from natural hazards. HMA
projects related to flood mitigation
mainly include elevation of structures,
floodproofing of structures, and
acquisition of properties that are at a
high risk of damage from flooding. HMA
also funds various other types of
projects such as minor flood control,
property acquisition, and generators, 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. HMA grant
program includes Hazard Mitigation
Grant Program (HMGP), HMGP Post
Fire, Pre-Disaster Mitigation (PDM),
Building Resilient Infrastructure and
Communities (BRIC), and Flood
$57,343
$57,343
$0
Mitigation Assistance (FMA). Between
2010 and 2019, FEMA funded a total of
841 minor flood control and generators
projects, for an average of 84 such
projects per year. Additional minor
mitigation measures will have to be
taken for these projects, if located in the
expanded FFRMS floodplain.
FEMA used data from HMA grant
approvals for projects that include the
elevation or floodproofing of structures
from 2010–2019 and a multi-step
process to estimate the range of costs for
elevating or floodproofing these
structures to the FFRMS.
For HMA, if the FVA is the only
expansion option, FEMA estimated the
final rule will affect 7,755 structures
over the first 10 years. These costs
would be incurred in the first 10 years
of the 60-year period because that is
when the investment in those projects
would take place. Accordingly, FEMA
estimates average annual costs in years
1–10 of $1.8 million. Using the 75
percent Federal cost share, FEMA
estimates that it will cover 75 percent of
the cost to elevate or floodproof HMA
projects, for a total of $1.4 million in
additional grants per year in years 1–10.
Grant recipients will bear the remaining
cost of $0.5 million per year.
$57,343
$571343
$0
1111111
$168,174
$168,174
$0
For HMA, if the 0.2PFA is the only
expansion option, FEMA estimated that
the final rule will affect 7,712 structures
in the first 10 years. Because these costs
would be incurred in the first 10 years
of the analysis, FEMA estimates the
average annual cost in years 1–10 will
be $1.8 million. Using the 75 percent
Federal cost share, FEMA estimates that
it will cover 75 percent of the cost to
elevate or floodproof HMA projects, for
a total of $1.4 million in additional
grants per year in years 1–10. Grant
recipients will bear the remaining cost
of $0.5 million per year.
For HMA, if the CISA is the only
expansion option, FEMA estimated that
the final rule will affect 10,398
structures over the first 10 years.
Because these costs would be incurred
in the first 10 years, FEMA estimates
that the average annual cost in years 1–
10 is $4.3 million. Using the 75 percent
Federal cost share, FEMA estimates that
it will cover 75 percent of the cost to
elevate or floodproof HMA projects, for
a total of $3.2 million in additional
grants per year. Grant recipients will
bear the remaining cost of $1.1 million
per year.
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the floodplain by 26 percent. FEMA opted for the
mid-point for CISA because this is the best
approach with available data. Please see further
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explanation in the appropriate CISA sections: 7.4.3,
7.5.3, and 7.6.3.
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312 For analysis purposes, FEMA calculated the
expanded floodplain using the mid-point (and
rounded down) to +5-ft CISA which would expand
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Table 8: Summary ofFFRMS HMA Structure Annual Project Costs and Distributional Im
Federal Register / Vol. 89, No. 133 / Thursday, July 11, 2024 / Rules and Regulations
Need for Regulation
Executive Order 11988, as amended,
requires agencies to improve the
resilience of communities and Federal
assets against the impacts of flooding.
The FFRMS is a flood resilience
standard that provides a flexible
framework to increase resilience against
flooding and help preserve the natural
values of floodplains and wetlands.
Incorporating the FFRMS ensures FEMA
expands flood risk management from
the current base flood elevation to a
higher vertical elevation and
corresponding horizontal floodplain to
address current and future flood risk
and ensure that projects funded with
taxpayer dollars last as long as intended.
Affected Population
The affected population is FEMA
grant recipients whose projects are
located in the current and the expanded
FFRMS floodplain. Grant recipients will
be required to comply with the new
standard by elevating or floodproofing
projects located in the expanded FFRMS
floodplain. Specific grant programs
include PA, IA, and HMA. PA grant
recipients include public and certain
non-profit entities, IA grant recipients
include individuals, and HMA grant
recipients include States, territories,
Federally-recognized Tribes, and local
communities.
The implementation of the FFRMS
will have negligible impacts on
community property values, tax bases
and the distribution of real income.
Additionally, FEMA expects the
impacts on affordable housing for low to
moderate income households and
disadvantaged communities to be
minimal since most actions subject to
FFRMS requirements are nonresidential. FEMA only funds
residential construction in the IA and
HMA programs; FEMA funds 153
residential IA projects and 268 HMA
residential projects per year on average.
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Baseline
Under current FEMA regulations set
out in 44 CFR part 9, the base floodplain
is defined as the 100-year floodplain (1
percent annual chance), or for critical
actions, defined as the 500-year
floodplain (0.2 percent annual chance).
New construction or substantial
improvement of structures located in
the base floodplain must be elevated to
or above the 1 percent annual chance
flood level or Base Flood Elevation
(BFE) or floodproofed below the BFE.
Critical actions located within either the
1 percent annual chance floodplain or
the 0.2 percent annual chance
floodplain must be elevated or
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floodproofed up to the corresponding
elevation for the 0.2 percent annual
chance floodplain where it is
mapped.313
FEMA has interim policies for PA and
HMA that partially implement FFRMS
and ASCE 24 standards in some areas,
discussed in further detail below.
Depending on the criticality of the
action, these programs apply the
supplemental FFRMS policy either to
the base floodplain, or to both the 100year and 500-year floodplains for
critical actions. At the time the NPRM
RIA was conducted, these partial
implementation policies had been in
place for less than 2 years. These
policies were issued as temporary,
partial implementation of the FFRMS
until FEMA could implement it through
this rulemaking. FEMA conducted this
Regulatory Impact Analysis against a
pre-statutory baseline to capture the
economic impacts of the FFRMS and
more accurately to measure the impacts
of the rule against the world without the
interim PA and HMA policies. Likewise,
data on projects that adhered to the
ASCE 24 standards is not available.
Accordingly, FEMA used a pre-guidance
baseline for this final rule to measure
the impacts of the rule against the world
without these policies and in
accordance with the current
requirements of 44 CFR part 9.
PA Interim Policy
The June 3, 2022 PA interim partial
implementation policy 314 provides
elevation requirements for critical and
non-critical actions involving structures
located in a designated floodplain. The
policy established requirements for
elevating and floodproofing structures
funded under the PA program. The
interim policy set forth principles at its
issuance that ensure that communities
affected by future flooding are less
vulnerable to losses of life and property,
that investment of PA program funds for
projects in the floodplain are spent to
protect structures from flood risk, that
structures are elevated or floodproofed
313 FEMA’s project level data for IA, PA, and
HMA delineate whether projects are in the Special
Flood Hazard Area (1 percent annual chance
floodplain) but do not show whether they are in the
0.2 percent chance floodplain. For critical actions,
FEMA was unable to determine the baseline
number of critical actions that are located in the 0.2
percent chance floodplain. Regardless of which
floodplain the project is in, a critical action must
be elevated at or above the 0.2 percent annual
chance flood level.
314 Partial Implementation of the Federal Flood
Risk Management Standard for Public Assistance
(Interim). FEMA Policy 104–22–0003. Available at:
https://www.fema.gov/sites/default/files/
documents/fema_fp-104-22-0003-partialimplemetnation-ffrms-pa-interim.pdf. Last
accessed: July 20, 2022.
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57021
to address current and future flood risk,
and that the policy is implemented in a
consistent and equitable manner.
This policy is being applied to
structures (walled or roofed buildings,
including mobile homes and gas or
liquid storage tanks) in a mapped or
established 1 percent annual chance
floodplain or 0.2 percent annual chance
floodplain 315 that have a substantial
damage 316 determination, require
substantial improvement,317 or involve
new construction.318 This applies
regardless of the cause of damage.
HMA Interim Policy
The August 26, 2021 HMA interim
partial implementation policy 319 sets
forth the elevation requirements for the
use of FEMA HMA for non-critical
actions involving structure elevation,
dry floodproofing, and mitigation
reconstruction projects in the 1 percent
annual chance floodplain.320 321
315 Under 44 CFR 9.4, Floodplain means the
‘‘lowland and relatively flat areas adjoining inland
and coastal waters including, at a minimum, that
area subject to a one percent or greater chance of
flooding in any given year. Wherever in this
regulation the term floodplain is used, if a critical
action is involved, floodplain shall mean the area
subject to inundation from a flood having a 0.2
percent chance of occurring in any given year (500year floodplain). Floodplain does not include areas
subject only to mudflow until FIA adopts maps
identifying M Zones.’’
316 Under 44 CFR 59.1, Substantial Damage means
‘‘damage of any origin sustained by a structure
whereby the cost of restoring the structure to its
before damaged condition would equal or exceed 50
percent of the market value of the structure before
the damage occurred.’’
317 Under 44 CFR 9.4, 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
Disaster Relief Act of 1974) (a) before the repair or
improvement is started, or (b) 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.’’
318 Under 44 CFR 9.4, New Construction means
‘‘the construction of a new structure (including the
placement of a mobile home) or facility or the
replacement of a structure or facility which has
been totally destroyed.’’
319 Partial Implementation of the Federal Flood
Risk Management Standard for Hazard Mitigation
Assistance Programs (Interim). FEMA Policy FP–
206–21–0003. Available at: https://www.fema.gov/
sites/default/files/documents/fema_policy-fp-20621-0003-partial-mplementation-ffrms-hmaprograms-interim.pdf. Last accessed: July 20, 2022.
320 FEMA implemented an update to the HMA
interim policy on December 2022. This updated
interim policy provides updated elevation
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Federal Register / Vol. 89, No. 133 / Thursday, July 11, 2024 / Rules and Regulations
The updated HMA interim policy,322
which supersedes the initial HMA
interim policy, provides elevation
requirements for critical and noncritical actions involving structures (as
defined in 44 CFR 9.4) located in a
designated floodplain. This updated
interim policy covers the additional
flexibility for non-critical actions to
select the lower of the 0.2PFA or +2-ft
above the BFE and setting elevation
requirements for critical actions
involving structures.
By partially implementing the FFRMS
and requiring a higher vertical flood
elevation for certain non-critical actions,
FEMA is helping to ensure that
communities affected by future flood
disasters are less vulnerable to losses of
life and property. This policy purpose is
to improve the resilience of non-critical
actions involving structure elevation,
dry floodproofing, and mitigation
reconstruction projects located in the
SFHA against the impacts of flooding,
which are anticipated to increase over
time due to changing conditions and
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requirements for critical and non-critical actions
involving structures as defined in 44 CFR part 9.4
located in a designated floodplain. The updated
interim policy also provides updated requirements
for elevating and floodproofing structures funded
under HMA programs. The RIA does not address
the changes in the updated HMA interim policy.
321 The 1 percent annual chance floodplain is
currently also defined as the Special Flood Hazard
Area under the NFIP.
322 Partial Implementation of the Federal Flood
Risk Management Standard for Hazard Mitigation
Assistance Programs. FEMA Policy 206–21–003–
0001. Available at: https://www.fema.gov/sites/
default/files/documents/fema_policy-fp-206-21003-0001-implementation-ffrms-hma-program_
122022.pdf. Last accessed: December 30, 2022.
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other threats; and to ensure such
projects will last as long as intended.
Total Costs
This final rule will increase costs for
certain IA, PA, and HMA program
projects, as well as result in
administrative costs for FEMA. FEMA
expects minimal effects on grants
processed by FEMA’s GPD because
these programs involve grants for
preparedness activities and generally do
not fund new construction or
substantial improvement projects.
Future FEMA facilities that may be
located within the FFRMS floodplain
will also be subject to the requirements
of the final rule.
FEMA is unable to quantify the cost
for increased resiliency standards for
the 26,985 facility projects estimated to
be affected in the first 10 years after this
rule’s publication. Additionally, FEMA
is unable to quantify the cost for
projects that may be diverted out of the
floodplain, impacts to projects with
existing basements, project delays, or
forgone projects that may result from
this rule.
Using the CISA as the primary
approach, FEMA estimates that the final
rule will affect 13,476 PA, IA, and HMA
structures over the first 10 years. Those
costs are incurred in the first 10 years
of the 60-year period because that is
when the investment in those projects
takes place.323 Discounted over 60
323 FEMA limited its dollar-valuation to the
projects impacted in the first 10 years after the
rule’s effective date. FEMA has considered the
resulting costs, benefits, and transfer payments of
the final rule on those projects over a 50-year
period, for a total of 60 years. The costs and
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Fmt 4701
Sfmt 4700
years, the low estimate 324 cost is
between $134.0 million and $110.4
million, using 3 and 7 percent
respectively, with a 60-year annualized
cost of $4.8 million and $7.9 million,
using 3 and 7 percent respectively (see
Table 9). Discounted over 60 years, the
high estimate cost is between $169.8
million and $139.9 million, using 3 and
7 percent respectively, with a 60-year
annualized cost of $6.1 million and
$10.0 million, using 3 and 7 percent (see
Table 10). Monetized costs include
additional training for FEMA staff as
well as the cost for the additional
elevation or floodproofing. FEMA is
unable to quantify the cost for increased
resiliency standards for an estimated
26,985 affected facility projects over the
10-year period of analysis. Additionally,
FEMA is unable to quantify the cost for
projects that may be diverted out of the
floodplain, impacts to projects with
existing basements, project delays, or
forgone projects that may result from
this rule.
transfers occur in the first 10 years of the 60-year
period because that is when the initial investment
to elevate or floodproof them to meet the FFRMS
requirements takes place. This is an upfront cost
that occurs when the project is constructed.
However, the benefits of the final rule are realized
over the 50-year useful life of the affected
structures.
324 FEMA has created a range for the
administrative costs: between if all projects used
the FFSST (low estimate) and if all used the Job Aid
(high estimate). FEMA acknowledges that there may
be situations where a combination of the FFSST
and Job Aid may be used. However, FEMA was
unable to estimate how many would use the FFSST
and how many would use the Job Aid since the
FFSST is currently being improved. In reality, the
administrative costs will likely fall somewhere
within the low and high estimates.
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'
$70 ,
$701,I
$701,
$701,1
$701,
$701,1
$701,
$
$
8
9
10
$14,92
$14,92
$14,92
$14,92
$14,92 ,
$14,921,562
. $14,921,562
$14,921,562
$15,887,165
$14,725,930
$14,297,019
$13,880,601
$13,476,312
$13,083,798
$12,702,716
$12,332,734
$11,973,.529
$11,624,785
15,622,
15,622,
15,622,
$15,622,
$15,622,
$15,622,
$15,293,252
$13,645,505
$1J,752,809
$11,918,513
$11,138,797
$10,410,091
$9,729,057
$9,092,576
$8,497,735
$7,941,808
$0 •
$0
$133,984,589
$4,841,260
Annualized
$110,420,143
$7,865,141
* After year I 0, this final rule will continue to impact FEMA projects funding new construction, substantial improvements or
repairs to fix substantial damage, but FEMA has chosen to limit the analysis to IO years of affected structures because FEMA
believes the number of structures affected in this 10-year period is enough to provide a reasonable estimate of the costs, benefits,
and transfers resulting from the final rule. Accordingly, FEMA's analysis focuses on the 50-year impacts of the rule on projects
that take place in the initial 10-year period, for a total period of analysis spanning 60 years.
Table 10: Primary Approach (CISA) Estimated Costs over the 60-Year Period of Analysis (High Estimate,
•••• 1 ••
<$~;~}~6~ •• ~
$835,ZQ1f
4 -1~~$-&-3s,202 •
}!t!!;:~;~
1
> ••
${8,985,370.f > $19,820;,5'.72 J · ... • ••. •· !$J8,J38z63TL.$16,J79,49L1
$1&,9ss,31o·T
$19,&20,sn :
~~~.-·~·>~.·_·•••_s-+}_.•••· .·•··• •ws~21g L .••.. ·.$J.&,985;31QL •
1 > ._•.•.. ._.c
> <•••.·.•...•~.
8
~~::~;6:~~; ~ • • . • '!!!:!!~:~~~J ~~~:I~~:6~~ l
$11,610,322 • $1s,121,019
1
$J9;i?Q01tT. > • > $11;091,40ot $J4,l3t;..i:94J
l! > :.·. ;:~~i~ir.·•.;•~t!:~ -.. ·. :.~t!:!i~:~~r .·· . . . . It~~~~~:~;, ·!t~:~~~~~: ;!
$835,202 :
f-ci..:·••~~ ·) >9J.·:;: 3~202:L
10 !
$835,202 :
-.1-1-·.::oo-*. ..-+-l-····~-··-•.....-< $0 l
i---...~~
•••- .••••
-
$18,985,370
$19,820,572 :
. $15,646,543 :
$l&,.985,3Jo)L .. ··.•$1'9,s2o;i12k···
$18,985,370 I
· •···•·... ·.·•
$OT
$19,820,sn ,
• • $!) 1
>\·
~:::~nzed ...••.·•..· • ) ••• "..
<
$11,535,753
• $t5J90,8l8 l>$10~1s1,Qittl
>
.• •
$14,748,367 . $10,01s,114 :
• • • • .$0) •.. •.••• • • .;.; . $0 j
$l:~;~~:~}i$1::r:!;!!i~
FEMA believes that the benefits of the
final rule will justify the costs. FEMA
has identified qualitative benefits,
including reductions 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 has also analyzed
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16:41 Jul 10, 2024
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quantified benefits of one additional
foot of freeboard for PA projects using
the CISA.
This final rule will result in savings
in time and money from a reduced
recovery period after a flood, as well as
the increased safety of individuals.
Generally, if properties are protected,
there will be less damage, resulting in
less recovery time. In addition, higher
elevations will help to protect people,
leading to increased safety. FEMA is
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Fmt 4701
Sfmt 4700
unable to quantify these benefits but
discusses them qualitatively in the
Regulatory Impact Analysis.
In support of these benefits, FEMA is
using the 2022 Benefits Analysis of
Increased Freeboard for Public and
Nonresidential Buildings in Riverine
and Coastal Floodplains 325 (2022
325 A Benefits Analysis of Increased Freeboard for
Public and Nonresidential Buildings in Riverine
and Coastal Floodplains. FEMA. Draft, July 2022.
E:\FR\FM\11JYR2.SGM
Continued
11JYR2
ER11JY24.009</GPH>
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Total Benefits
ER11JY24.010</GPH>
* After year I 0, the final rule will continue to impact FEMA projects funding new construction, substantial
improvements or repairs to fix substantial damage, but FEMA has chosen to limit the analysis to IO years of affected
structures because it believes that the number of structures affected in this 10-year period is enough to provide a
reasonable estimate of the costs, benefits, and transfers resulting from the final rule. Accordingly, FEMA's analysis
focuses on the 50-year impacts of the rule on projects that take place in the initial IO-year period, for a total period of
analysis spanning 60 years.
57024
Federal Register / Vol. 89, No. 133 / Thursday, July 11, 2024 / Rules and Regulations
report) that analyzed potential benefits
(such as a reduction in damages,
displacement, and loss of function, from
increased flood protection requirements
for public and nonresidential use
buildings located in riverine and coastal
SFHAs). This report’s scope included
six construction methods in coastal and
riverine areas: Elementary School 1Story, Hospital 2–3 Stories, Police
Station 2-Stories, Office Building
(Business) 1-Story, Office Building
(Business) 3-Story, and Office Building
(Government office) 1-Story. The
riverine analysis considered locations
along 14 rivers, while the coastal
analysis considered 12 different
locations along a hypothetical coastal
transect; both only considered scenarios
based on future conditions.
Future conditions for the riverine
analysis included two climate change
scenarios: the Representative
Concentration Pathways (RCP) 4.5
scenario and the RCP 8.5 scenario that
represent various efforts to curb future
emissions.326 The study used these two
climate change scenarios to evaluate the
amount of increase or decrease in
riverine flood elevations over the next
50 years. For the coastal analysis, the
study included the impact of various sea
level rise conditions in areas with wave
heights less than 1.5-ft (flood zones A)
that are subject to coastal storm surge.
The sea level rise conditions replicated
a 2016 evaluation considering 8-, 20-,
39- and 59-inch sea level rises by 2100.
FEMA has evaluated benefits associated
with the rule using both RCP 4.5 and 8.5
scenarios, and three of the four sea level
rise conditions: 8-, 39-, and 59-inches.
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Available at: https://www.regulations.gov/
document/FEMA-2023-0026-0003. Last accessed:
March 22, 2024.
326 Representative Concentration Pathways (RCP)
are projected future emissions and concentration
trajectories for climate change models that account
for the increase in greenhouse gas, aerosol, and
chemically active gas emissions. According to the
Environmental Protection Agency, they define RCP
as the following. RCP 4.5: This scenario assumes a
stabilization in GHG emissions shortly after 2100.
RCP 8.5: This scenario is characterized by
increasing GHG emissions over time, and factors in
the highest GHG concentration levels of all the
scenarios by 2100.
Changes Over Time. EPA. Available at: https://
www.epa.gov/enviroatlas/changes-over-time. Last
accessed: December 1, 2023.
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The 2022 report used FEMA’s BCA
Toolkit to calculate benefits for each
year between 2023 and 2072 and then
used these projections to calculate the
present value benefits for each
scenario.327 The Toolkit used standard
depth-damage functions (curves) to
estimate damages from inundation and
to calculate the benefits of mitigation
that included avoided physical damage,
avoided displacement (costs incurred
while staying in a temporary location
following an event), and avoided loss of
function (the economic impact to a
community due to a lack of critical
services). The study also considered the
potential avoided losses (or benefits)
associated with either dry floodproofing
or elevation of nonresidential and
public use buildings.328 It compared
existing freeboard requirements against
one additional foot of freeboard; that is,
the study evaluated the benefits of
elevating or floodproofing to the BFE+2
from a current assumed height of BFE+1
for non-critical actions and to BFE+3
from a current assumed height of BFE+2
for critical actions.
According to this report, for critical
facilities in coastal SFHAs, such as
police stations and hospitals, inclusion
of one additional foot of freeboard will
provide increased protection and
continuity of operations and result in a
quantifiable benefit. Elevating buildings
would help to maintain community
resiliency farther into the future. The
riverine analysis indicated that despite
the large variation in the flood data for
the 14 sites, inclusion of one additional
foot of freeboard would result in
quantifiable average benefits. Critical
actions and schools had the highest
benefits across various riverine
locations.
FEMA has used this study to estimate
the benefits of an additional foot of
freeboard for non-residential PA
327 FEMA developed the BCA Toolkit to perform
an analysis of cost-effectiveness of mitigation
projects. The BCA Toolkit uses Office of
Management and Budget cost-effectiveness
guidelines and FEMA-approved methodologies and
tools to complete a benefit-cost analysis. The tool
can be found here: https://www.fema.gov/grants/
tools/benefit-cost-analysis#toolkit.
328 2016 Evaluation of the Benefits of Freeboard
for Public and Nonresidential Buildings in Coastal
Areas. https://www.regulations.gov/document/
FEMA-2015-0006-0379. Page 4.
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projects. FEMA was unable to use the
benefits study to estimate the benefits
for HMA and IA projects, since HMA
data cannot be broken out by building
types and IA data is limited to
residential-related projects.
For FEMA’s primary estimate, FEMA
used 59 inches of SLR due to it being
the closest SLR option to the vertical
rise in FEMA’s +5-ft assumption for
CISA. CISA is the preferred approach
for the FFRMS if the data are available.
Since 5 feet is equivalent to 60 inches
(5 × 12 inches per foot), 59-inch SLR is
the closest SLR option that FEMA had
available for this portion of the analysis.
Using CISA for all PA Category E
projects that are subject to the FFRMS,
with the assumption that there would be
a 59-inch SLR, FEMA estimates that the
present value benefits of one additional
foot of freeboard for the 50-year useful
life of 1,154 PA Category E projects
undertaken during the first 10 years
after the rule’s effective date will be
between $56.1 million and $46.2
million (low estimate), discounted at 3
and 7 percent respectively, with a 60year annualized benefit of $2.0 million
and $3.3 million, at 3 and 7 percent (See
Table 11) and between $66.1 million
and $54.4 million (high estimate),
discounted at 3 and 7 percent
respectively, with a 60-year annualized
benefit of $2.4 million and $3.9 million,
at 3 and 7 percent. (See Table 12).
Tables 11 and 12 show the number of
projects constructed each year (column
2), the present value of the benefits as
of the year in which they were
constructed (column 3), and the present
value of the benefits as of the beginning
of Year 1, using a 3 percent and 7
percent discount rate (columns 3 and 4,
respectively). For example, the benefits
shown in Year 1 represent the present
value of the benefits for the 115
Category E projects constructed in Year
1 over their 50-year useful life (i.e., in
Years 1–50 of the analysis). The analysis
does not account for any benefits for
Year 1 projects after their 50-year useful
life. The benefits shown in Year 10
represent the present value of the
benefits for projects constructed in Year
10 over their 50-year useful life, (i.e., in
Years 11–60 of the analysis).
BILLING CODE 9111–66–P
E:\FR\FM\11JYR2.SGM
11JYR2
Federal Register / Vol. 89, No. 133 / Thursday, July 11, 2024 / Rules and Regulations
57025
Table 11: Primary Approach (CISA) Estimated 50-Year Benefits for PA Category E Projects Undertaken
$6,581,729
... $6,581,729
$6,581,729 •
$6,581,729
$6,581,729
$6,581,729
$6,581,729
$6,581,729
$6,581,729
$6,581,729
$6,390,028
$6,203,911
. $6,023,214
115
$5,847,781
115 .
$5,677,457
$5,512,094
7
.. $5,351,548
8
$5,195,678
9
$5,044,347
$4,897,424
60-Year Total*
$56,143,482
Annualized**
$2,028,630
* The benefits in this column represent the present value of the benefits for structures constructed in that
year over their 50-year useful life, as of the year in which they were constructed.
** The total benefits represent the total present value of benefits as of the beginning of Year I.
$6,151,149
$5,748,737
$5,372,651
$5,021,170
$4,692,682
$4,385,684
$4,098,770
$3,830,626
$3,580,024
$3,345,817
$46,227,310
$3,292,735
Table 12: Primary Approach (CISA) Estimated 50-Year Benefits for PA Category E Projects Undertaken
Durio Years 1-10 Hi h Estimate, 2022$
[1· ~--· •, - -- - - ,
I< •
- t ~ .. _._ ·_:
n
• •••·· J
!
.: .
~ !!!
i
- - . · · .•.. - -
- - - - -1:11:~5- ! .- -~.--,
--
___ , .....
I
•:.
J;;;~Jitl. .J;:~:~1 ::;1~~i
I
'
:em . -- ~¥i2 · · ·!~~:~:!
$7,75,MSf ·.·.•.· .·•
•
$~.~P!,?~ ·.·•··· ;··;·$4,8.t~,1}lf
. ·tl~
!115!~ I
i:lt:titj:~;tJ.\ . . . •.•·.•· ·•: . Jtt!tj;;}l·I:: . :.J{i:1:4l·.•·
.JL.Z~Q&S,S,__ l . . .
$5,?~.Z,215
$3,940,040
11°;r:::;;!!l~t-- !· . . ·· ---'-"-'------ · ··. . ·· · ....... · ·· · ··· ·······:···::.::· ·· ··--~~~:lU~;U-J-~·~ $:;::;;~:~t
.. . .
10
1
.
* The benefits in this column represent the present value of the benefits for structures constructed in that
year over their 50-year useful life, as of the year in which they were constructed.
** Annualized over the 60-year period of analysis.
Total Transfer Payments
ER11JY24.012</GPH>
$104.7 million and $86.2 million, with
a 60-year transfer between $3.8 million
and $6.1 million annually, at 3 and 7
percent respectively (see Table 13).
FEMA’s high estimate of the increase in
transfer payments is between $134.2
million and $110.5 million, with a 60year transfer between $4.8 million and
$7.9 million annually, at 3 and 7
percent discount rates, respectively (see
Table 14).
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11JYR2
ER11JY24.011</GPH>
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Because the cost to implement the
FFRMS mitigation measures will be
shared between FEMA and grant
recipients according to the statutory cost
share, there are also important
distributional impacts. The majority of
elevation and floodproofing costs will
be borne by FEMA through additional
grants (a transfer from FEMA to grant
recipients). Grant recipients will bear
the remaining cost. The below section
shows the additional transfers from
FEMA to grant recipients. Using CISA as
the primary approach, FEMA estimates
that this final rule will affect 13,476
structures in the first 10 years resulting
in an increase in transfer payments (i.e.,
grants) over the 60-year period of
analysis. FEMA’s low estimate of the
increase in transfer payments is between
57026
Federal Register / Vol. 89, No. 133 / Thursday, July 11, 2024 / Rules and Regulations
Table 13: Primary Approach (CISA) Estimated Transfers over the 60-Year Period of Analysis (Low Estimate,
2022$
Annualized
* After year 10, the final rule will continue to impact FEMA projects funding new construction, substantial
improvements or repairs to fix substantial damage, but FEMA has chosen to limit the analysis to 10 years of
affected structures because FEMA believes the number of structures affected in this 10-year period is enough
to provide a reasonable estimate of the costs, benefits, and transfers resulting from the final rule. Accordingly,
FEMA's analysis focuses on the 50-year impacts of the rule on projects that take place in the initial IO-year
period, for a total period of analysis spanning 60 years.
Table 14: Primary Approach (CISA) Estimated Transfers over the 60-Year Period of Analysis (High Estimate,
2022$)
$15,730,87Q .
$15,730,870
$15,730,870.
$15,730,870
$15,730,870
$15,730,87Q
..$.1.? 173W870..•
$15,730,870 ...
$15,730,870
$15,730,870
$0
$)4,701,748
······$1},73.9,.951
$12,84I,o76 .•
$12,001,005.
$11,215,893
.. $10,482,143
$1\272,689 •
$14,827,854
$.14,395,974
$13,976,674
$13,569,587
$13,174,356.
$g,z9o,§37:
$12,418,094
$go56,402
$11,705,245
$0
'"""""
'"""
"''"
. $9p796,395
$?,155,510
$8,556,551
. $7,996,777
...Jo..
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options for making them resilient,
FEMA cannot estimate the costs of
improving flood resiliency of
facilities.329 Tables 15 and 16 show that
the total 60-year benefits for nonresidential PA Category E projects
constructed in the first 10 years is $54.4
million (7 percent, high). This benefit is
for adding one foot of freeboard,
assuming a 59-inch SLR. Although the
cost for residential and non-residential
PA Category E projects is $133.3 million
(7 percent, high), this cost represents 5
feet of freeboard (FEMA’s assumption
for CISA).330 FEMA does not have data
to quantify the benefits of additional
freeboard, and thus the quantified
benefits represent only a portion of the
329 Category E projects are public buildings and
contents. See ‘‘Public Assistance Program and
Policy Guide’’ Page 51, at https://www.fema.gov/
sites/default/files/documents/fema_pappg-v4updated-links_policy_6-1-2020.pdf.
330 Costs for the FVA may be a better comparison
because they represent 2 or 3 feet of freeboard,
depending on criticality. However, the number of
projects using FVA and CISA differ, making such
a comparison difficult.
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E:\FR\FM\11JYR2.SGM
11JYR2
ER11JY24.014</GPH>
In Tables 15 and 16, FEMA presents
the cost, transfer payments and benefit
estimates by FFRMS approach. FEMA
also presents estimates of costs,
transfers, and benefits by grant program
for CISA, FEMA’s primary approach.
The administrative cost estimate is not
broken down by grant program because
much of the cost will exist regardless of
the program. Quantitative estimates of
benefits are only available for projects
under PA category E (Public Buildings).
Due to the highly project-specific nature
of facilities projects, and the numerous
ER11JY24.013</GPH>
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Total
Annualized
$4,~48,592
.$71869.,.907
* After year I 0, the final rule will continue to impact FEMA projects funding new construction, substantial
improvements or repairs to fix substantial damage, but FEMA has chosen to limit the analysis to IO years of
affected structures because FEMA believes the number of structures affected in this 10-year period is enough to
provide a reasonable estimate of the costs, benefits, and transfers resulting from the final rule. Accordingly,
FEMA's analysis focuses on the 50-year impacts of the rule on projects that take place in the initial IO-year
period, for a total period of analysis spanning 60 years.
Federal Register / Vol. 89, No. 133 / Thursday, July 11, 2024 / Rules and Regulations
increased risk reduction that will be
achieved through this rule. Ensuring
projects are built to the height necessary
to avoid additional loss scenarios will
provide additional unquantified benefits
of avoided damages to the structure,
decreased cleanup time and disruption
to the community, and increased public
health and safety. Moreover, FEMA’s
use of CISA as its preferred approach
will use the best available and
actionable scientific data to tailor future
57027
flooding risk to each project, ensuring
that projects are built only to the height
necessary and thus maximizing net
benefits. Accordingly, FEMA believes
the benefits of the rule—quantified and
unquantified—will justify its costs.
Table 15: Summary of60-Year Costs, Transfers, and Benefits by Approach and Program for Affected Projects
in Years 1-10 Low Estimate, 2022$)
-;-,:-_::lti·:.•: ::'°' '.' :' :c_'
IA
'Uitt:Wlnti,\\t&';
FVA
'!:&' '.j~if\\$t(fl(ft().'$:'(,~J,lj §:):~:
0
0''8:$'7$.;~Jffl;~':t\5,~l :)f:t' l;;;.:$$<: ; -• ·\U~!ii(j
$1,434,557
$1,181 184
$84 135
-\:l"j't;1};:/X-m i,'i't:~$i
:(l\~ :',;\[,;;$3('f:,J/ta'~'~OAi0,'' '\'%!:\$)I'$:\
._• t:\:•~'. ,;:;$,~(P$$'.(}j/49~;g \' '.ii(§;]$2:i•~~-·,~t~~\
$756 606,840 $645 400 983 $23,320 247
$531,408,984
$37,851,850
'.J.,~i:lf'~L•'.;;~~::·•';•:·'':;'2;•···:· ;::-;•;,$if~1tffl''-- J~':: :'.;':::$'3-,'l"QZ7Y~ait$,:'.:' :·;:_':\$l';'.$3/7'¥tl1$'i ·;'',' '.':::·-;·-i$~'.tf~'t~~~;"' ':·•_;:;;;::::;:~''l71''i,(iJS;'.':
$7,752,811
$6,700,641
$242,114
$5,617,336
$400,118
Not Estimated: Increased resiliency standard for approximately 26,985 facility
projects over 10 years, Additional costs for Adding Requirements to Buildings
with Basements, Diversion of Projects Out of the Floodplain, Lifecycle
maintenance costs for flood roofin , and Pro'ect Dela sand For one Pro"ects
331 To obtain the total costs as in Section 7.12,
add each individual approach to the FEMA admin
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cost. For example, CISA + FEMA admin = total
CISA cost.
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E:\FR\FM\11JYR2.SGM
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ER11JY24.015</GPH>
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FEMA Admin
Not Quantified
57028
Federal Register / Vol. 89, No. 133 / Thursday, July 11, 2024 / Rules and Regulations
Table 16: Summary of60-Year Costs, Transfers, and Benefits by Approach and Program for Affected Projects
CISA (primary)
(+5-ft)
IA
HMA
FVA
0.2PFA
FEMAAdmin
Not Quantified
CISA Total
(primary) (+5ft
PA
IA
HMA
FVA Total
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PA (CISA,
primary) (+1ft)
Not Quantified
$5,851,69 $133,345,29
$9,498,082
9
2
$4,468,59 $101,827,80
$123,670,781
$7,253,115
1
1
$1,434,557
$51,835
$1,181,184
$84,135
$1,331,27
$43,192,063
$36,843,704
$30,336,295
$2,160,831
2
$2,297,94
$74,555,130
$63,597,039
$52,364,403
$3,729,876
9
$1,574,45
$51,081,940
$43,573,931
$35,877,816
$2,555,549
5
$9,093,061
$7,843,901
$283,423
$6,558,671
$467,169
Not Estimated: Increased resiliency standard for approximately 26,985 facility
projects over 10 years, Additional costs for Adding Requirements to Buildings with
Basements, Diversion of Projects Out of the Floodplain, Lifecycle maintenance costs
for flood roofin and Pro·ect Dela sand For one
$161,949,055
$157,308,70
0
$123,232,90
0
$1,681,740
$32,394,060
$134,187,512
$105,120,163
$1,434,557
$27,632,790
$61,609,580
$52,554,220
$77,506,550
$66,114,661
$4,848,59
2
$3,798,30
3
$51,835
$998,454
$1,898,93
9
$110,487,04
9
$7,869,907
$86,553,631
$1,181,184
$22,752,232
$6,165,148
$84,135
$1,620,624
$43,271,991
$3,082,230
$2 ,388 •91
8
$54,437,358
$3,877,531
Not Estimated: Damage Avoidance for approximately 12,322 IA and HMA structure
projects and 26,985 PA and HMA facility projects over 10 years, Potential Lives
Saved, Increased Public Health and Safety, Decreased Cleanup Time, Protection of
Critical Facilities Reduction of Personal and Communi Im acts
In Table 17, FEMA presents the OMB
A–4 Accounting Statement. FEMA’s
analysis presents a range for costs and
transfers of +5-ft of freeboard, and the
benefits of +1-ft of freeboard. The range
is due to uncertainty about whether new
construction PA Category E projects will
choose to floodproof or elevate.333
Accordingly, FEMA’s PA minimum
estimate assumes all new construction
projects choose to floodproof and the
maximum assumes all new construction
projects choose to elevate. FEMA’s
analysis for HMA and IA projects do not
have a range. Table ES–14 shows the
primary costs and transfers using the
332 To obtain the total costs as in Section 7.12,
add each individual approach to the FEMA admin
cost. For example, CISA + FEMA admin = total
CISA cost.
333 Because it is more expensive to elevate
substantial repair projects than to floodproof them,
FEMA assumes that all substantial repair projects
will choose to floodproof.
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CISA approach only and the average of
the ranges. FEMA has calculated the
total benefits using the minimum and
maximum estimates of PA benefits.
FEMA has calculated the primary
benefit estimates using the CISA
approach with a 59-inch SLR and then
taking the average of this range.
E:\FR\FM\11JYR2.SGM
11JYR2
ER11JY24.016</GPH>
PA
$189,853,70
0
$144,979,87
8
$1,681,740
Federal Register / Vol. 89, No. 133 / Thursday, July 11, 2024 / Rules and Regulations
Increased resiliency standard for approximately 26,985 facility
projects in Years 1-10 years, diversion of projects out of the
floodplain, project delays and forgone projects, lifecycle
maintenance costs for floodproofmg, and additional costs for
addin re uirements to buildin s with basements.
Qualitative
(unquantified) costs
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Annualized monetized
transfers grants
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3 percent:
$4,316,257
3 percent:
$3,783,922
3 percent:
$4,848,592
7 percent:
$7,005,857
7 percent:
$6,141,806
7 percent:
$7,869,907
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E:\FR\FM\11JYR2.SGM
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RIA Section 7 .11
RIA Sections 7.13
ER11JY24.017</GPH>
•
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Effects on small
entities*
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i
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Effectsoliwa_ges ·.: ~
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In an average year, FFRMS would impact about 1, 154 PA
Category E projects. Based on a random sample of92 projects,
FEMA found that the grant recipients for 47 of the projects met the
definition of a small entity. FEMA estimated that 51 percent (47 +
92) of projects, or 504 Category E projects were small entities
under the Regulatory Flexibility Act.
In an average year, FFRMS would impact about 63 HMA
elevation or tloodproofing projects per year. Assuming 51 percent
of HMA grants benefit small entities, FEMA estimated that the
final rule would impact 32 small entities receiving HMA grants
each year.
In an average year, FFRMS would impact about 1,036 PA
Category C facilities. Based on a random sample of91 projects,
FEMA found that grant recipients for 70 of the projects, or 76.9
percent (70 + 91 ), were small entities that would meet the
definition of small entities under the Regulatory Flexibility Act.
In an average year, FFRMS would impact about 120 PA Category
Final Rule Preamble,
D facilities. Based on a random sample of 55 projects, FEMA
Regulatory Flexibility
found that grant recipients for 37 of the projects, or 67.3 percent
Act
(37 + 55), were small entities that would meet the definition of
small entities under the Regulatory Flexibility Act.
In an average year, FFRMS would impact about 208 PA Category
F facilities. Based on a random sample of 68 projects, FEMA
found that grant recipients for 55 of the projects, or 80.9 percent
(55 + 68), were small entities that would meet the definition of
small entities under the Regulatory Flexibility Act.
In an average year, FFRMS would impact about 314 PA Category
G facilities. Based on a random sample of 76 projects, FEMA
found that grant recipients for 40 of the projects, or 52.6 percent
(40 + 76), were small entities that would meet the definition of
small entities under the Regulatory Flexibility Act.
In an average year, FFRMS would impact about 84 HMA grant
recipients received FEMA funding per year for minor flood
controls and generator projects. Based on a random sample of 46
projects, FEMA found that grant recipients for 19 of the projects,
or 41.3 percent (19 + 46), were small entities that would meet the
definition of small entities under the Regulatory Flexibility Act.
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Effects on growth
•
* FEMA limited its dollar-valuation to the projects impacted in the first 10 years after the rule's effective date. FEMA
considered the resulting costs, benefits, and transfer payments of the final rule on those projects over a 50-year period,
for a total of 60 years. The costs and transfers occur in the first IO years of the 60-year period because that is when the
initial investment in those projects takes place to elevate or floodproofthem to meet the FFRMS requirements. This is
an upfront cost that occurs when the project is constructed. However, the benefits of the f"mal rule would be realized
over the 50-year useful life of the affected structures.
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B. Regulatory Flexibility Act
This section considers the effects that
this rule will 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
334 FEMA has calculated the primary estimates by
calculating the average of the minimum and the
maximum estimates for respective each percent. For
example, for the primary 3 percent benefits, FEMA
calculated the average for 3 percent discount
minimum and 3 percent discount maximum.
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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 a Final Regulatory
Flexibility Analysis (FRFA) for this rule.
This analysis is detailed in this section
and represents FEMA’s assessment of
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the impacts of this rule on small
entities. Section 1 outlines FEMA’s
assessment of small entities that will be
affected by the regulations. Section 2
presents FEMA’s analysis and
summarizes the steps taken by FEMA to
comply with the FRFA.
1. Assessment of Small Entities Affected
by the Regulations
This rule will affect FEMA grant
recipients that receive Federal funds
under the PA, IA, and HMA programs
for new construction, substantial
improvement to structures, or to address
substantial damage to structures and
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facilities. Recipients of these grants are
primarily States, Tribal governments,
local governmental jurisdictions, and
certain 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 addresses the below
requirements of a FRFA:
(1) a statement of the need for, and
objectives of, the rule;
(2) a statement of the significant
issues raised by the public comments in
response to the initial regulatory
flexibility analysis, a statement of the
assessment of the agency of such issues,
and a statement of any changes made in
the proposed rule as a result of such
comments;
(3) the response of the agency to any
comments filed by the Chief Counsel for
Advocacy of the Small Business
Administration in response to the
proposed rule, and a detailed statement
of any change made to the proposed rule
in the final rule as a result of the
comments;
(4) a description of and an estimate of
the number of small entities to which
the rule will apply or an explanation of
why no such estimate is available;
(5) a description of the projected
reporting, recordkeeping, and other
compliance requirements of the 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;
(6) a description of the steps the
agency has taken to minimize the
significant economic impact on small
entities consistent with the stated
objectives of applicable statutes,
including a statement of the factual,
policy, and legal reasons for selecting
the alternative adopted in the final rule
and why each one of the other
significant alternatives to the rule
considered by the agency which affect
the impact on small entities was
rejected.
2.1 Statement of the need for, and
objectives of the 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, directing
agencies to issue or amend existing
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regulations and procedures to
implement the Executive Order, FEMA
promulgated regulations located at 44
CFR part 9. FEMA is revising 44 CFR
part 9 to reflect the changes to Executive
Order 11988 made by Executive Order
13690.
The objective of the rule is to revise
the regulations for locating actions
subject to the FFRMS 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 rule, the rule
will impose more stringent elevation
and resilience requirements. This is
necessary to protect actions where even
a slight chance of flooding is too great.
The rule will also require the use,
where possible, of natural features and
nature-based approaches when
developing alternatives for
consideration that will accomplish the
same purpose as a considered action but
have less potential to affect or be
affected by the floodplain. Common
examples of a nature-based approach
will be replacing concrete drainage
systems with natural drainage or
covering an area with plants to absorb
water and reduce runoff.
Several programs exist to assist with
flood mitigation or recovery efforts after
a flood.335 IA and PA are disaster relief
programs and primarily provide
assistance after a disaster. HMA Grants
are provided to increase resilience to
hazards, and these have been shown to
be very effective. By requiring recipients
of FEMA funding to consider an
expanded floodplain and build a higher
level of flood resilience into their
projects, the rule will reduce the
likelihood of further damage and help
prevent the loss of life in future flooding
events. This will compel recipients of
Federal funds to build to higher flood
resilience standards and avoid repetitive
loss situations.
2.2 Statement of the significant
issues raised by the public comments in
response to the Initial Regulatory
Flexibility Analysis (IRFA), a statement
of the assessment of the agency of such
issues, and a statement of any changes
made to the proposed rule as a result of
such comments.
FEMA did not receive any comments
on the IRFA for this rule, and therefore
did not make any changes to this FRFA
due to public comments.
2.3 The response of the agency to
any comments filed by the Chief
335 In addition to the FEMA-administered grant
programs discussed in this analysis (IA, PA, HMA,
and programs administered by GPD), FEMA also
provides flood insurance through the NFIP. FEMA
does not apply 44 CFR part 9 to non-grant site
specific actions under the NFIP.
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Counsel for Advocacy of the Small
Business Administration (SBA) in
response to the proposed rule, and a
detailed statement of any change made
to the final rule as a result of the
comments.
FEMA did not receive any comments
on the proposed rule from the Chief
Counsel for Advocacy of the SBA.
2.4 Description of and an estimate of
the number of small entities to which
the rule will apply or an explanation of
why no such estimate is available.
This rule will affect certain recipients
of FEMA grants. These will primarily be
PA and HMA grant recipients, including
States, Tribal governments, local
governments, and certain non-profit
organizations. The PA grant recipients
will 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 E (public buildings)
because Category E is for structures
whereas projects funded under the
remaining PA categories are for
facilities. Facilities will not be required
to floodproof or elevate but will instead
need to be made resilient to the
appropriate flood levels, which is highly
project-specific in nature, and the lack
of data for such projects makes it
exceedingly difficult to estimate costs.
Therefore, FEMA has included only
estimates of the number of affected
facility projects but was unable to
estimate a corresponding cost. IA and
GPD are not discussed in this analysis.
IA provides grants directly to
individuals, who are not small entities
as defined in 5 U.S.C. 601(6). FEMA
finds that this rule will likely have no
effect on GPD grants because GPD
projects are not typically substantial
improvement or new construction.
FEMA estimates that the FFRMS
requirements will expand the floodplain
between 5 percent and 43 percent based
on a study 336 conducted in 800 square
miles of coastal and riverine areas
representative of places where the
FFRMS will apply. FEMA developed
floodplain expansion estimates for two
distinct areas of the country: coastal and
riverine. The first estimate was for
coastal areas where FEMA anticipates
implementing the CISA approach using
currently-actionable sea level rise data.
The second estimate was the area that
represented the rest of the country,
where 0.2PFA or FVA approaches will
likely be applied. A total of 400 square
miles of mapped flood zones were used
as the baseline estimate for each of the
two areas of the country. FEMA selected
336 This report is available at regulations.gov
under docket ID FEMA–2023–0026.
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a random sample of 40 coastal and
riverine areas representative of the areas
where the FFRMS will apply, with at
least 10 square miles in each sampled
area to ensure varying topography was
captured. FEMA calculated the
floodplain expansion in each sample at
various levels of freeboard so that there
was a total of 400 square miles of
expansion information for each area.
FEMA selected the CISA as the
primary approach for evaluating the
impacts of this final rule, since it is the
preferred approach and is designed to
meet current and future estimates of
flood risks unique to the location and
thus provide the best overall resilience,
cost effectiveness, and equity. FEMA
does not have data detailed enough to
estimate the average CISA level within
the United States for this analysis.
Instead, FEMA assumes CISA values
will range from 1- to 10-ft of freeboard,
based on the anticipated interagency
tools that are currently in development.
FEMA anticipates applying the CISA in
those rounded amounts as ‘‘climateinformed freeboard.’’ The 10-foot ceiling
will account for the highest levels of
anticipated sea level rise along the Gulf
and Atlantic coasts. Depending on
location, under the CISA, some places
may be required to elevate or floodproof
to +1-ft above the 1 percent annual
chance plain, while other places may be
required to use +10-ft above the 1
percent annual chance plain. However,
FEMA does not have available data or
research to estimate what the required
levels or how many structures will be
subject to the requirements. For analysis
purposes, FEMA has calculated the
expanded floodplain using the midpoint (rounded down), +5-ft CISA level,
which FEMA estimates will expand the
floodplain by 26 percent.
FEMA considered using the minimum
and maximum levels, but the minimum
and maximum levels will not reflect the
impacts of the rule accurately. FEMA
did not use the minimum level for this
approach because it will reflect a large
number of structures that were not
elevated or floodproofed to a high
enough standard, when the rule may
actually require them to be subject to a
higher standard. If FEMA modeled all
structures at the minimum standard, the
costs would be underestimated
compared to the actual impact of the
rule. The benefits of protecting the
structures from flood will also be
underestimated because at the
minimum level, many structures will be
left vulnerable to devastating flood
damage. Likewise, FEMA did not use
the maximum level because it will
reflect a large number of structures
elevated or floodproofed to a standard
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too high compared to what the rule may
require. If FEMA modeled all structures
at the maximum standard, the costs
would be overestimated compared to
the actual impact. The benefits of
protecting the structures from flood
could potentially be overestimated as
well, and not reflect the actual impact
of the rule.
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
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 will incur
additional costs to comply with
elevation and floodproofing
requirements. From 2013–2022, 916
individual PA Category E grant
recipients received FEMA funding for
substantial improvement
floodproofing 337 or new construction.
Under the CISA, with the 26 percent
expansion of the floodplain, an
additional 238 PA Category E projects
(916 × 26 percent), for a total of 1,154
(916 + 238) projects, will be located in
the 1 percent annual chance floodplain
or expanded FFRMS floodplain over the
10-year period. FEMA randomly
sampled 92 projects.338 Of the 92
projects, 47 projects, or 51 percent (47
÷ 92), meet the definition of small
entities under the Regulatory Flexibility
Act.
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 above the flood level. FEMA
will apply the FFRMS to all actions
subject to the FFRMS, and all structure
elevation, mitigation reconstruction,
and dry floodproofing projects. As noted
in the Regulatory Impact Analysis,
FEMA funded an average of about 50
HMA elevation, mitigation
reconstruction, and floodproofing
structure projects per year from 2020–
337 The cost of elevating an existing structure is
significantly higher than the cost of retrofitting the
structure to be floodproofed, so FEMA assumed that
substantial improvement projects would elect to
floodproof rather than elevate.
338 The population of PA Category E projects
includes all ‘‘Public Buildings’’ grants from 2013–
2022 that received substantial improvement
floodproofing or new construction funding. Because
of the large population, FEMA used Slovin’s
formula and a 90 percent confidence interval to
determine the sample size. Slovin’s formula: n = N/
(1+N*e ∧ 2). Therefore, 1,154/(1 + 1,154 × 0.1 ∧ 2)
= 92 (rounded).
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2022.339 Unlike PA grants, most HMA
grants are for projects located in the
floodplain, so for this analysis, FEMA
assumes that all HMA elevation,
mitigation reconstruction, and dry
floodproofing projects are in the
floodplain. FEMA cannot estimate what
projects might be considered actions
subject to the FFRMS in addition to
structure elevation, mitigation
reconstruction, and dry floodproofing
projects because HMA data does not
distinguish whether projects are
considered new construction,
substantial improvement, or repairs to
address substantial damage. However,
structure elevation, mitigation
reconstruction, and dry floodproofing
are the primary HMA projects relating to
flood mitigation.340
With the 26 percent expansion of the
floodplain, an additional 13 HMA
projects per year (50 × 26 percent), for
a total of 63 (50 + 13) projects, will be
located in the 1 percent annual chance
floodplain or expanded FFRMS
floodplain. Assuming 51 percent 341 of
HMA grant recipients are small entities,
approximately 32 (63 projects × 51
percent) small entities receiving HMA
grants will be affected per year.
Facilities will not be required to
floodproof or elevate but will instead
need to be made resilient to the
appropriate FFRMS floodplain.
Resilience measures for facilities are
highly project-specific, and FEMA lacks
data for such projects, making it
exceedingly difficult to estimate costs.
FEMA could not estimate the cost of
this rule on small entities for facilities.
However, FEMA conducted an analysis
to estimate the number of small entities
for affected facility projects based on
historical data.
In an average year, FFRMS will
impact about 1,036 PA Category C
339 FEMA was unable to obtain 10-years of
historical data from 2013–2022 for HMA due to
changes within the program’s database. Therefore,
FEMA used the best available data for years 2010
through 2019 instead.
340 The other project type related to flood
mitigation is acquisition. Generally, acquisition
projects are for open space purposes and restore the
natural and beneficial functions of the floodplain.
Property acquisitions that result in relocated
structures would be subject to FFRMS elevation and
floodproofing requirements if the structure is
relocated within the FFRMS floodplain. HMA data
does not break out relocation costs from acquisition
costs, so FEMA is unable to estimate additional
relocation expenses for acquisition projects.
341 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.
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facilities. Based on a random sample of
91 projects,342 FEMA found that grant
recipients for 71 of the projects, or 76.9
percent (70 ÷ 91), met the definition of
small entities under the Regulatory
Flexibility Act.
In an average year, FFRMS will
impact about 120 PA Category D
facilities. Based on a random sample of
55 projects,343 FEMA found that grant
recipients for 37 of the projects, or 67.3
percent (37 ÷ 55), met the definition of
small entities under the Regulatory
Flexibility Act.
In an average year, FFRMS will
impact about 208 PA Category F
facilities. Based on a random sample of
68 projects,344 FEMA found that grant
recipients for 55 of the projects, or 80.9
percent (55 ÷ 68), met the definition of
small entities under the Regulatory
Flexibility Act.
In an average year, FFRMS will
impact about 314 PA Category G
facilities. Based on a random sample of
76 projects,345 FEMA found that grant
recipients for 40 of the projects, or 52.6
percent (40 ÷ 76), met the definition of
small entities under the Regulatory
Flexibility Act.
In an average year, FFRMS will
impact about 84 HMA grant recipients
that received FEMA funding per year for
minor flood controls and generator
projects. Based on a random sample of
46 projects,346 FEMA found that grant
recipients for 19 of the projects, or 41.3
percent (19 ÷ 46), were small entities
under the definition of small entities
under the Regulatory Flexibility Act.
2.5 Description of the projected
reporting, recordkeeping and other
compliance requirements of the 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.
342 Because of the large population, FEMA used
Slovin’s formula and a 90 percent confidence
interval to determine the sample size. Slovin’s
formula: n = N/(1+N*e∧2). Therefore, 1,036/(1 +
1,036 × 0.1∧2) = 91 (rounded).
343 Because of the large population, FEMA used
Slovin’s formula and a 90 percent confidence
interval to determine the sample size. Slovin’s
formula: n = N/(1+N*e∧2). Therefore, 120/(1 + 120
× 0.1∧2) = 55 (rounded).
344 Because of the large population, FEMA used
Slovin’s formula and a 90 percent confidence
interval to determine the sample size. Slovin’s
formula: n = N/(1+N*e∧2). Therefore, 208/(1 + 208
× 0.1∧2) = 68 (rounded).
345 Because of the large population, FEMA used
Slovin’s formula and a 90 percent confidence
interval to determine the sample size. Slovin’s
formula: n = N/(1+N*e∧2). Therefore, 314/(1 + 314
× 0.1∧2) = 76 (rounded).
346 Because of the large population, FEMA used
Slovin’s formula and a 90 percent confidence
interval to determine the sample size. Slovin’s
formula: n = N/(1+N*e∧2). Therefore, 84/(1 + 84 ×
0.1∧2) = 46 (rounded).
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FEMA will not be changing the
application process for its grant
programs. The majority of the costs for
the increased elevation or floodproofing
requirements of structures in the
FFRMS floodplain will be funded by
FEMA through several grant programs.
Small entities, like all entities, will be
subject to additional costs not covered
by these grants for the floodproofing,
elevation of structures, and flood
resilience measures required by the rule.
For the purposes of this analysis, and
based on historical data, FEMA presents
the costs such that all projects will
choose to elevate because of the
additional level of safety that elevation
provides over floodproofing and a
historically higher number of HMA
projects that involved elevation as
opposed to floodproofing.347 FEMA uses
an NFIP report to estimate the cost of
the elevation requirements.348 The
report provides estimates for the cost of
elevating structures as a percentage of
total construction cost.
The cost of elevating an existing
structure is considerably higher than the
cost of retrofitting the structure to be
floodproofed. 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 existing 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. New buildings will be
evaluated for both dry floodproofing
(preventing the intrusion of floodwaters
into the building by using a system of
waterproofing and shields) and
elevation (constructing higher), while
existing buildings will only be
evaluated for dry floodproofing.
As established above, FEMA estimates
this rule will impact 47 small entity PA
347 According to historical HMA data, there have
been an average of 63 elevation projects and only
4 floodproofing projects per year.
348 FEMA, ‘‘2008 Supplement to the 2006
Evaluation of the National Flood Insurance
Program’s Building Standards’’ Table 3, available at
https://www.fema.gov/sites/default/files/2020-07/
fema_nfip_2008_freeboard_report_0.pdf (last
accessed Apr. 29, 2024).
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Category E projects annually. Using
CISA as the primary approach, FEMA
estimates that the total cost for the
elevation and floodproofing
requirements of this rule for all PA
Category E projects will be between
$10,434,180 ($104,341,798 ÷ 10 years)
and $14,497,988 ($144,979,878 ÷ 10
years) annually for 115 (1,154 PA Total
FFRMS action Category E projects ÷ 10
years) projects annually. Therefore, each
project will cost between $90,732
($10,434,180 ÷ 115 projects) and
$126,078 ($14,497,988 ÷ 115 projects).
There is an average of 47 small entity
PA projects per year. Small entity
projects will have a total average
expected cost between $4,264,404
($90,732 × 47 small entities PA projects)
and $5,925,666 ($126,078 × 47 small
entities PA projects) per year. The
historical average cost share for PA
Category E projects is 85.0 percent
covered by FEMA and 15.0 percent
covered by the recipients, with the
majority of recipients receiving a 75
percent or a 90 percent cost share,
depending on the type of disaster
declaration. FEMA estimates that, for
PA Category E projects, each small
entity will have an average expected
cost (i.e., their portion of the cost share)
of between $13,610 ($90,732 × 15.0
percent) and $18,912 ($126,078 × 15.0
percent) per project.
As established above, FEMA estimates
that this rule will affect approximately
32 small HMA grant recipients per year.
Using CISA as the primary approach,
FEMA estimates that the total 10-year
cost for the elevation and floodproofing
requirements of this rule for HMA
projects will be $4,319,206 ($43,192,063
÷ 10 years) annually for 1,040 (10,398
HMA Total FFRMS action projects ÷ 10
years) projects annually. There is an
average of 32 small entities HMA
projects per year. The average HMA
project cost is $4,153 ($4,319,206 ÷
1,040 HMA projects) per project. The
cost-sharing arrangement for HMA is 75
percent Federal and 25 percent
recipient, so HMA recipients will be
required to fund 25 percent of the costs
to comply with the requirements of the
rule. Each small entity cost share will
have an average expected cost of $1,038
($4,153 × 25 percent).
Reporting and recordkeeping are not
expected to change, with the exception
of minor changes to FEMA’s Mitigation
Grant Program/e-Grants system. FEMA
will continue to make the determination
of whether a project will take place in
an FFRMS floodplain.
2.6 Description of the steps the
agency has taken to minimize the
significant economic impact on small
entities consistent with the stated
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objectives of applicable statutes,
including a statement of the factual,
policy, and legal reasons for selecting
the alternative adopted in the final rule
and why each one of the other
significant alternatives to the rule
considered by the agency which affect
the impact on small entities was
rejected.
The standards in this rule represent
FEMA’s efforts to implement Executive
Order 11988, as amended, which
establishes executive branch-wide
policy in this area. Executive Order
13690 establishes the FFRMS. The
policies established in these EOs do not
consider exempting small entities from
all or part of the standard; the purpose
of the FFRMS is to ensure that agencies
expand management from the current
base flood level to a higher vertical
elevation and corresponding horizontal
floodplain to address current and future
flood risk and help ensure that projects
funded with taxpayer dollars last as
long as intended. Accordingly, the
FFRMS will apply to all affected FEMA
projects, including small entities.
As discussed previously, most of the
cost of the mitigation standards required
by this rule will be paid by FEMA in the
form of additional PA, IA, or HMA
grants. Cost sharing is required for most
FEMA grant programs. For PA and
HMA, affected small entities will be
required to pay the recipient portion of
the cost share, which is 25 percent in
most cases. There are, however, some
exceptions and cost shares can be
waived or set at a different level by
Congress for PA. FEMA does not have
the authority to adjust the cost share
specifically for small entities.
Executive Order 11988, as amended,
allows several approaches to determine
the FFRMS floodplain. Section F of this
Final Rule, FEMA’s Implementation of
Executive Order 11988, as amended,
and FFRMS, describes the FFRMS
approaches allowed by Executive Order
11988, as amended, and FEMA’s
considerations when selecting between
the FFRMS approaches. FEMA will, in
its accompanying policy, use the CISA
as the preferred approach. FEMA has
chosen the CISA as its preferred
approach because it is the only one that
uses the best available climate science
to help ensure projects are designed to
meet current and future flood risks
unique to the location and thus provides
the best overall resilience, cost
effectiveness, and equity. Accordingly,
FEMA believes its preferred approach
will minimize the risk that affected
small entities incur more costs than
necessary because of overprotection or
incur preventable costs from future
damage because of under protection.
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The CISA establishes the required
vertical elevation and corresponding
horizontal floodplain, through the bestavailable, actionable hydrologic and
hydraulic data and methods that
integrate current and future changes in
flooding based on climate science, in
accordance with the Revised
Guidelines. When such data is not
available, this rule and supplementary
policy direct the use of other
approaches depending on the criticality
of the action. The rule also requires the
use of natural systems, ecosystem
processes, and nature-based approaches
where possible.
The FFRMS is a flexible framework to
increase resilience against flooding and
help preserve the natural and beneficial
values of floodplains. Incorporating the
FFRMS into FEMA regulations will
ensure that FEMA expands flood risk
management from the current base flood
elevation to a higher vertical elevation
and corresponding horizontal floodplain
to address current and future flood risk
and helps ensure that projects funded
with taxpayer dollars last as long as
intended for all applicants, including
small entities. FEMA considered a more
protective approach for critical actions
but did not select this approach. FEMA
could have chosen a more protective
approach in which it would determine
the elevations established under CISA,
FVA, and the 0.2PFA for critical actions
and only allow the applicant to use the
highest of the three elevations. This
approach would ensure that applicants
were protecting these critical assets at
the highest level. However, this
approach may lead to overbuilding and
not be the most cost-effective or
equitable approach for applicants
including small entities.
FEMA also considered a more
protective approach for all actions but
did not select this approach. FEMA
could have required use of the highest
standard for all actions, regardless of
criticality. While this approach would
ensure that applicants, including small
entities, were building all actions to the
most protective level, this approach
would likely lead to overbuilding and
not be the most cost-effective, equitable
approach, particularly for non-critical
actions.
Small entities affected by the rule, as
with any entity affected by the rule, will
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 FFRMS
level in the floodplain, and the recipient
has the ability to relocate.
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C. Unfunded Mandates Reform Act of
1995
The Unfunded Mandates Reform Act
of 1995, 2 U.S.C. 658, 1501–1504, 1531–
1536, 1571, pertains to any rulemaking
which is likely to result in the
promulgation of any rule that includes
a Federal mandate that may result in the
expenditure by State, local, and Tribal
governments, in the aggregate, or by the
private sector, of $100 million (adjusted
annually for inflation) or more in any
one year. If the rulemaking includes a
Federal mandate, the Act requires an
agency to prepare an assessment of the
anticipated costs and benefits of the
Federal mandate. The Act also pertains
to any regulatory requirements that
might significantly or uniquely affect
small governments. Before establishing
any such requirements, an agency must
develop a plan allowing for input from
the affected governments regarding the
requirements.
FEMA has determined this
rulemaking will not result in the
expenditure by State, Territorial, local,
and Tribal governments, in the
aggregate, nor by the private sector, of
$100,000,000 or more in any one year as
a result of a Federal mandate, and it will
not significantly or uniquely affect small
governments.349 Therefore, no actions
are deemed necessary under the
provisions of the Unfunded Mandates
Reform Act of 1995.
D. Paperwork Reduction Act 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 OMB control number. See 44
U.S.C. 3506, 3507. This final rule calls
for no new collections of information
under the PRA. The final rule includes
information currently collected by
FEMA and approved in OMB
information collections 1660–0072
(FEMA Mitigation Grant Programs) and
1660–0076 (Hazard Mitigation Grant
349 FEMA expects that increased costs to
applicants will be minimal. For example, FEMA
found that for a project with a 75% FEMA/25%
applicant cost share, the cost to an applicant to
elevate a structure above the BFE to meet FEMA’s
FFRMS requirements using the FVA+2 (1.91
percent of construction cost) represented less than
0.5% of the total project cost, or an average of an
additional $4,775 in applicant cost share on an
original total project cost of $1,000,000. See A
Benefit Analysis of Increased Freeboard for Public
and Nonresidential Buildings in Riverine and
Coastal Floodplains, posted to the public docket of
this rulemaking at https://www.regulations.gov/
document/FEMA-2023-0026-0003.
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Program (HMGP) Application and
Reporting). With respect to these
collections, this final rule will not
impose any additional burden and will
not require a change to the forms, the
substance of the forms, or the number of
recipients who would submit the forms
to FEMA.
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E. 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. See 5 U.S.C.
552a(a)(5). 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 completed a Privacy Threshold
Analysis for this rule. This rule is
covered by the following PIAs: DHS/
FEMA/PIA–006 FEMA National
Emergency Management Electronic
Grants System, DHS/FEMA/PIA–025Hazard Mitigation Grant Program
(HMGP) System, DHS/FEMA/PIA–026
Operational Data Store and Enterprise
Data Warehouse PIA, and DHS/FEMA/
PIA–031 Authentication and
Provisioning Services (APS). No updates
to these PIAs are necessary. Further, this
rule is covered under the following
System of Records Notices (SORNs):
DHS/FEMA–009 Hazard Mitigation,
Disaster Public Assistance, and Disaster
Loan Programs, 79 FR 16015, Mar. 24,
2014; DHS/ALL–004 General
Information Technology Access
Account Records System (GITAARS), 77
FR 70792, Nov. 27, 2012; and DHS/
FEMA–008 Disaster Recovery
Assistance Files. This final rule will not
create a new system of records, and no
updates to these SORNs are necessary.
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F. 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. 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 reviewed this final rule under
Executive Order 13175 and determined
that this rule would 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 IA, PA, and HMA programs,
and grants processed by FEMA’s 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. FEMA’s edits in
this final rule specifically provide for
Indian Tribal government information
as a resource when making the
floodplain determination under part 9,
consistent with comments received.
G. Executive Order 13132, Federalism
Executive Order 13132, ‘‘Federalism,’’
64 FR 43255, August 10, 1999, sets forth
principles and criteria that agencies
must adhere to in formulating and
implementing policies that have
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57035
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 determined this
rulemaking 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 IA, PA, and HMA programs,
and grants processed by FEMA’s 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 final 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.
H. National Environmental Policy Act of
1969 (NEPA)
Section 102 of NEPA (42 U.S.C. 4321
et seq.) requires Federal agencies to
evaluate the effects of a proposed major
Federal action to determine if it will
significantly affect the human
environment, consider alternatives to
the proposed action, provide public
notice and opportunity for comment,
and properly document its analysis. See
40 CFR parts 1501, 1506.6. DHS and its
component agencies analyze proposed
actions to determine whether NEPA
applies and, if so, what level of analysis
and documentation is required. 40 CFR
1501.3. DHS Directive 023–01, Rev. 01
and DHS Instruction Manual 023–01–
001–01, Rev. 01 (Instruction Manual)
establish the policies and procedures
DHS and its component agencies use to
comply with NEPA and the Council on
Environmental Quality (CEQ)
regulations for implementing the
procedural requirements of NEPA
codified in 40 CFR parts 1500 through
1508. The CEQ regulations allow
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Federal agencies to establish in their
NEPA implementing procedures
categories of actions (‘‘categorical
exclusions’’) that normally do not have
a significant effect on the human
environment. Categorically excluded
actions do not require preparation of an
environmental assessment or
environmental impact statement. 40
CFR 1501.4, 1507.3(e)(2)(ii), 1508.1(d).
The Instruction Manual, Appendix A,
lists the DHS categorical exclusions.
Under DHS NEPA implementing
procedures, for an action to be
categorically excluded, it must satisfy
each of the following conditions: (1) the
entire action clearly fits within one or
more of the categorical exclusions; (2)
the action is not a piece of a larger
action; and (3) no extraordinary
circumstances exist that create the
potential for a significant environmental
effect.
The final rule updates the Floodplain
Management and Protection of Wetland
requirements to adopt the approaches
outlined in Executive Order 11988, as
amended. This involves establishing the
floodplain, using the vertical elevation
and corresponding horizontal extent, in
the 8-step decision-making process
FEMA follows in applying Executive
Order 11988, as amended to its actions.
FEMA’s final rule amends regulations
codified at 44 CFR part 9 to revise the
definition of the floodplain based on the
approaches in Executive Order 11988,
as amended, consisting of the ClimateInformed Science Approach (CISA), the
freeboard value approach (FVA), the
0.2-percent-annual-chance flood
approach (0.2PFA), and any other
method identified in updates. The final
rule allows FEMA to select and
prioritize among these approaches. The
rule revises the 8-step decision-making
process to incorporate consideration of
the approaches in determining if the
project is in the floodplain. The rule
also adds a requirement, where possible,
to use natural systems, ecosystem
processes, and nature-based approaches
in the development of alternatives for
Federal actions in a floodplain. The
result of redefining the floodplain and
applying the approaches outlined in
Executive Order 11988, as amended,
may be that structures and facilities
determined to be in the floodplain (‘‘the
FFRMS floodplain’’) would be designed
to be more resilient, and more structures
and facilities—due to the corresponding
horizontal expansion of the floodplain—
might be subject to an elevation
requirement and/or other mitigation
measures. Further, with the expanded
horizontal floodplain, and application
of the 8-step decision-making process,
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which allows for Federal actions in the
floodplain only if there is no practicable
alternative, it is possible some
structures or facilities that otherwise
would be constructed in a high-risk
flood area, would be constructed
elsewhere. This would result in better
protection of people and their property,
the floodplain and environment. When
placing the action in the floodplain
cannot be avoided, implementing
mitigation measures to actions in the
FFRMS floodplain will not only
promote public safety and lessen flood
risk, but may also reduce the impact of
the action on the floodplain, and
thereby contribute to preserving the
natural and beneficial values of the
floodplain per the mandate in E.O.
11988. Similarly, the requirement to use
natural systems, ecosystem processes,
and nature-based approaches, where
possible, in alternatives to the proposed
action, would contribute to restoring
and preserving the natural and
beneficial values of the floodplain.
FEMA has determined NEPA applies
to the final rule because it fits the
definition of a ‘‘major federal action.’’
CEQ’s NEPA regulations define ‘‘major
federal action’’ to include ‘‘new or
revised agency rules,’’ regulations and
policies. 40 CFR 1508.1(q)(2).
FEMA analyzed the final rule and
finds it meets the three DHS criteria for
a categorical exclusion. FEMA has
determined consistent with the first
criterion, the rule clearly fits within the
categorical exclusion found at A3 in the
DHS Instruction Manual, Appendix A.
Categorical exclusion A3 states
‘‘promulgation of rules, issuance of
rulings or interpretations, and the
development and publications of
policies’’ may be categorically excluded
if such actions ‘‘interpret or amend an
existing regulation without changing its
environmental effect.’’ Instruction
Manual, Appendix A, A3(d). The final
rule may result in requiring a structure
or facility to have either higher
elevation or floodproofing, or more
resilient design. The rule provides for a
higher resilience standard than the
existing rule. It is possible the expanded
horizontal floodplain may discourage
placing a ‘‘Federal action’’ in the
floodplain, as under the 8-step decisionmaking process, an action may be
located in the floodplain only if there is
no practicable alternative. In the event
there is a practicable alternative, and
new construction is consequently
located outside the floodplain, the effect
of the final rule would be to benefit the
environment by contributing to
restoring and preserving the values of
the floodplain, as well as enhancing
public safety. FEMA’s environmental
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and historic preservation review would
ensure that the agency takes into
account other potential environmental
impacts of locating outside the
floodplain.
If the Federal action must be located
in the FFRMS floodplain, that is, there
is no practicable alternative, it will be
subject to one of the three approaches or
a combination of them. FEMA’s
preferred approach is CISA. If the CISA
is used, it could result in an estimated
average of 5 feet of additional elevation
for a structure (or floodproofing to that
level). FEMA prefers the CISA because
it uses the best actionable and available
climate-informed science to determine
the floodplain is the most effective way
to make the action resilient. If the CISA
data is not available and/or actionable,
the final rule provides alternatives for
determining the floodplain for critical
actions and non-critical actions: for noncritical actions, the lesser of the
freeboard value approach (2 or 3 feet
above base flood elevation) or the 0.2
percent annual flood; and for critical
actions, the higher of the freeboard
value approach or 0.2 percent annual
flood. Given the CISA or the
combination of approaches may be
used, the potential for the change in
elevation (or floodproofing) levels
varies. Further, if communities have
stricter standards, which they are
required to apply, the communities will
still apply that standard, and thus,
application of the FFRMS would not
require a change in elevation. If the
‘‘Federal action’’ is substantial
improvement or addresses substantial
damage to a structure or facility, it
would involve action in a pre-built
environment, with the only change
being the structure or facility might be
elevated or floodproofed to the
appropriate higher level. If design rather
than elevation, or in addition to
elevation, is used to comply with the
FFRMS resilience standard, it is not
anticipated it will significantly impact
the environment. As part of
implementing the FFRMS resilience
standard, nature-based solutions are
required in alternatives to the proposed
action, where possible. When applied,
they will benefit the environment by
contributing to restoring and preserving
the natural and beneficial values of the
floodplain. None of the changes
required by any of the combined FFRMS
approaches are anticipated to change
the environmental effects of application
of the 8-step process. Categorical
exclusion A3 applies to this regulatory
action, however any of the Federally
funded actions to which the FFRMS
applies (new construction, substantial
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improvement and repair of substantial
damage) will undergo separate NEPA
analysis.
In addition to and apart from
application of the decision process in
this final rule, all Federal actions, new
construction, substantial improvement,
and actions addressing substantial
damage, are subject to NEPA review and
must comply with NEPA requirements.
Each Federal action subject to the
FFRMS will be evaluated on an
individual basis under NEPA and
related environmental laws, regulations,
and executive orders. The Federal
action will not be approved unless it
meets all applicable environmental and
historic preservation requirements.
Further, the Federal actions subject to
the proposed rule must comply with all
applicable floodplain requirements. See
44 CFR 9.11(d)(6) (referring to
requirement to be consistent with the
criteria of the NFIP at 44 CFR part 59
et seq. or any more restrictive Federal,
State, or local floodplain management
standard).
FEMA therefore concludes the final
rule clearly fits within categorical
exclusion A3. FEMA also finds the final
rule meets the second and third DHS
criteria for applying a categorical
exclusion. The final rule is not a piece
of a larger action, as it will be
implemented independently of other
FEMA actions and is a separate action
unto itself. Furthermore, FEMA finds
adopting the floodplain management
and protection approaches outlined in
Executive Order 11988, as amended,
presents no extraordinary circumstances
that increase the potential for significant
environmental effects to the
environment. Accordingly, the final rule
is categorically excluded, and no further
NEPA analysis or documentation is
required.
I. Executive Orders 12898 and 14096 on
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); and Executive Order 14096,
‘‘Revitalizing Our Nation’s Commitment
to Environmental Justice for All’’ (88 FR
25251, Apr. 26, 2023), FEMA
incorporates environmental justice into
its policies and programs. Executive
Order 14096 charges agencies to make
achieving environmental justice part of
their missions, consistent with statutory
authority, by identifying, analyzing, and
addressing disproportionate and adverse
human health and environmental effects
and hazards of Federal activities,
including those related to climate
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change and cumulative impacts of
environmental and other burdens on
communities with environmental justice
concerns.
This final rule will not have a
disproportionate and adverse human
health or environmental effect on
communities with environmental justice
concerns. FEMA addressed specific
comments related to environmental
justice above.
J. Executive Order 12630, Taking of
Private Property
This rule will not affect 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 final rule 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 final rule 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
owners of relevant intellectual property
to agree 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 then-President
Obama’s Climate Action Plan,350 the
350 The White House, ‘‘President Obama’s Climate
Action Plan, 2nd Anniversary Progress Report—
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57037
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.
N. Congressional Review of Agency
Rulemaking
Under the Congressional Review Act
(CRA), 5 U.S.C. 801–808, before a rule
can take effect, the Federal agency
promulgating the rule must submit to
Congress and to the Government
Accountability Office (GAO) a copy of
the rule; a concise general statement
relating to the rule, including whether it
is a major rule; the proposed effective
date of the rule; a copy of any costbenefit analysis; descriptions of certain
actions under the Regulatory Flexibility
Act and the Unfunded Mandates Reform
Act; and any other relevant information
or requirements under any other Act
and any executive orders. FEMA has
submitted this rule to the Congress and
to GAO pursuant to the CRA. OMB has
determined that this rule is not a ‘‘major
rule’’ within the meaning of the CRA.
List of Subjects in 44 CFR Part 9
Floodplains; Reporting and
recordkeeping requirements.
For the reasons discussed in the
preamble, the Federal Emergency
Management Agency (FEMA) is
amending 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: 6 U.S.C. 101 et seq.; 42 U.S.C.
4001 et seq.; 42 U.S.C. 4321 et seq.; E.O.
11988 of May 24, 1977, 42 FR 26951, 3 CFR,
1977 Comp., p. 117; E.O. 11990 of May 24,
1977, 42 FR 26961, 3 CFR, 1977 Comp. p.
121; E.O. 13690, 80 FR 6425; E.O. 14030, 86
FR 27967.
■
2. Revise § 9.1 to read as follows:
§ 9.1
Purpose.
This part sets forth the policy,
procedure, and responsibilities to
implement and enforce relevant sections
of the National Flood Insurance Act of
1968, as amended, and the Flood
Disaster Protection Act of 1973, as
Continuing to cut carbon, pollution, protect
American communities, and lead internationally.’’
June 2015 found at https://obamawhitehouse.
archives.gov/sites/default/files/docs/cap_progress_
report_final_w_cover.pdf (last accessed Jan. 24,
2024).
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amended, 42 U.S.C. 4001 et seq., the
National Environmental Policy Act of
1969, 42 U.S.C. 4321 et seq., as
amended, and other relevant statutory
authorities in conjunction with
Executive Order 11988, Floodplain
Management, as amended, and
Executive Order 11990, Protection of
Wetlands.
■ 3. Amend § 9.2 by revising paragraph
(b) and adding paragraphs (c) and (d) to
read as follows:
§ 9.2
Policy.
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*
*
*
*
*
(b) The Agency will provide
leadership in floodplain management
and the protection of wetlands,
informed by the best available and
actionable science, to bolster the
resilience of communities and Federal
assets against the impacts of flooding,
which are anticipated to increase over
time due to the effects of changing
conditions which adversely affect the
environment, economic prosperity,
public health and safety, and national
security.
(c) The Agency shall integrate the
goals of the Orders to the greatest
possible degree into its procedures for
implementing the National
Environmental Policy Act (42 U.S.C.
4321 et seq.).
(d) The Agency shall:
(1) Minimize the impact of floods on
human health, safety, and welfare;
(2) Avoid long- and short-term
adverse impacts associated with the
occupancy and modification of
floodplains and the destruction and
modification of wetlands;
(3) Avoid direct and indirect support
of floodplain development and new
construction in wetlands wherever there
is a practicable alternative;
(4) Reduce the risk of flood loss;
(5) Promote the use of nonstructural
flood protection methods to reduce the
risk of flood loss;
(6) Minimize the destruction, loss, or
degradation of wetlands;
(7) Restore and preserve the natural
and beneficial values served by
floodplains;
(8) Preserve and enhance the natural
values of wetlands;
(9) Involve the public throughout the
floodplain management and wetlands
protection decision-making process;
(10) Adhere to the objectives of the
Unified National Program for
Floodplain Management; and
(11) Improve and coordinate the
Agency’s plans, programs, functions,
and resources so that the Nation may
attain the widest range of beneficial uses
of the environment without degradation
or risk to health and safety.
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■
4. Revise § 9.3 to read as follows:
§ 9.3
Severability.
Any provision of this part held to be
invalid or unenforceable as applied to
any action should be construed so as to
continue to give the maximum effect to
the provision permitted by law, unless
such holding is that the provision of this
part is invalid and unenforceable in all
circumstances, in which event the
provision should be severable from the
remainder of this subpart and shall not
affect the remainder thereof.
■ 5. Amend § 9.4 by:
■ a. Adding in alphanumeric order
definitions for ‘‘0.2 percent annual
chance flood elevation’’, ‘‘0.2 percent
annual chance floodplain’’, ‘‘1 percent
annual chance flood elevation’’, and ‘‘1
percent annual chance floodplain’’;
■ b. Revising the definitions of ‘‘Action’’
and ‘‘Actions Affecting or Affected by
Floodplains or Wetlands’’;
■ c. Adding in alphabetical order a
definition for ‘‘Action subject to the
Federal Flood Risk Management
Standard’’;
■ d. Removing the definitions of ‘‘Base
Flood’’ and ‘‘Base Floodplain’’;
■ e. Adding in alphabetical order a
definition for ‘‘Base flood elevation’’;
■ f. Revising the definitions of ‘‘Coastal
High Hazard Area’’, ‘‘Critical Action’’,
and ‘‘Emergency Actions’’;
■ g. Adding in alphabetical order
definitions for ‘‘Federal Flood Risk
Management Standard (FFRMS)’’,
‘‘Federal Flood Risk Management
Standard (FFRMS) floodplain’’,
‘‘Federally funded project’’, and ‘‘FEMA
Resilience’’;
■ h. Removing the definitions of ‘‘FIA’’
and ‘‘Five Hundred Year Floodplain’’;
■ i. Revising the definition of ‘‘Flood or
flooding’’;
■ j. Removing the definitions of ‘‘Flood
Fringe’’, ‘‘Flood Hazard Boundary Map
(FHBM)’’, ‘‘Flood Insurance Rate Map
(FIRM)’’, and ‘‘Flood Insurance Study
(FIS)’’;
■ k. Revising the definitions of
‘‘Floodplain’’, ‘‘Functionally Dependent
Use’’, and ‘‘Mitigation’’;
■ l. Removing the definition of
‘‘Mitigation Directorate’’;
■ m. Adding in alphabetical order
definitions for ‘‘National security’’,
‘‘Nature-based approaches’’, ‘‘Natural
and beneficial values of floodplains and
wetlands’’, and ‘‘Natural features’’;
■ n. Removing the definition of
‘‘Natural Values of Floodplains and
Wetlands’’;
■ o. Revising the definition of ‘‘New
Construction’’;
■ p. Removing the definition of ‘‘New
Construction in Wetlands’’;
■ q. Revising the definitions of
‘‘Orders’’, ‘‘Practicable’’, ‘‘Regulatory
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Floodway’’, ‘‘Restore’’, ‘‘Structures’’,
and ‘‘Substantial Improvement’’;
■ r. Adding in alphabetical order a
definition for ‘‘Support of floodplain
and wetland development’’;
■ s. Removing the definition of
‘‘Support’’; and
■ t. Revising the definition of
‘‘Wetlands’’.
The additions and revisions read as
follows:
§ 9.4
Definitions.
0.2 percent annual chance flood
elevation means the elevation to which
floodwater is anticipated to rise during
the 0.2 percent annual chance flood
(also known as the 500-year flood).
0.2 Percent annual chance floodplain
means the area subject to flooding by
the 0.2 percent annual chance flood
(also known as the 500-year floodplain).
1 percent annual chance flood
elevation—see the definition of base
flood elevation in this section.
1 percent annual chance floodplain
means the area subject to flooding by
the 1 percent annual chance flood (also
known as the 100-year floodplain or
base floodplain).
Action means
(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.
Actions affecting or affected by
floodplains or wetlands means actions
which have the potential to result in the
long- or short-term impacts associated
with:
(1) The occupancy or modification of
floodplains, and the direct or indirect
support of floodplain development, or
(2) The destruction and modification
of wetlands and the direct or indirect
support of new construction in
wetlands.
Action subject to the Federal Flood
Risk Management Standard (FFRMS)
means any action where FEMA funds
are used for new construction,
substantial improvement, or to address
substantial damage to a structure or
facility.
*
*
*
*
*
Base flood elevation means the
elevation to which floodwater is
anticipated to rise during the 1 percent
annual chance flood (also known as the
base flood or 100-year flood). The terms
‘‘base flood elevation,’’ ‘‘1 percent
annual change flood elevation,’’ and
‘‘100-year flood elevation’’ are
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synonymous and are used
interchangeably.
Coastal high hazard area means an
area of flood hazard extending from
offshore to the inland limit of a primary
frontal dune along an open coast and
any other area subject to high velocity
wave action from storms or seismic
sources.
Critical action means any 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 actions means emergency
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).
*
*
*
*
*
Federal Flood Risk Management
Standard (FFRMS) means the Federal
flood risk management standard to be
incorporated into existing processes
used to implement Executive Order
11988, as amended.
Federal Flood Risk Management
Standard (FFRMS) floodplain means the
floodplain established using one of the
approaches described in § 9.7(c) of this
part.
Federally funded project—see the
definition of Action subject to the
Federal Flood Risk Management
Standard in this section.
FEMA Resilience means the
organization within FEMA that includes
the Federal Insurance and Mitigation
Administration, the Grants Program
Directorate, and the National
Preparedness Directorate.
*
*
*
*
*
Flood or flooding means the general
and temporary condition of partial or
complete inundation of normally dry
land areas from the overflow of inland
and/or tidal waters, and/or the unusual
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and rapid accumulation of runoff of
surface waters from any source. 0.2
percent annual chance flood means the
flood which has a 0.2 percent chance of
being equaled or exceeded in any given
year (also known as the 500-year flood).
1 percent annual chance flood means
the flood which has a 1 percent chance
of being equaled or exceeded in any
given year (also known as the 100-year
flood or base flood). The terms ‘‘base
flood,’’ ‘‘1 percent annual chance
flood,’’ and ‘‘100-year flood’’ are
synonymous and are used
interchangeably.
*
*
*
*
*
Floodplain means any land area that
is subject to flooding. The term
‘‘floodplain,’’ by itself, refers to
geographic features with undefined
boundaries. For the purposes of this
part, the FFRMS floodplain shall be
established using one of the approaches
described in § 9.7(c). See the definitions
of 0.2 percent annual chance
floodplain, 1 percent annual chance
floodplain, and Federal Flood Risk
Management Standard floodplain in
this section.
*
*
*
*
*
Functionally dependent use means a
use which cannot perform its intended
purpose unless it is located or carried
out in close proximity to water.
*
*
*
*
*
Mitigation means steps necessary to
minimize the potentially adverse effects
of the proposed action, and to restore
and preserve the natural and beneficial
floodplain values and to preserve and
enhance natural values of wetlands.
*
*
*
*
*
National security means:
(1) A condition that is provided by
either:
(i) A military or defense advantage
over any foreign nation or group of
nations;
(ii) A favorable foreign relations
position; or
(iii) A defense posture capable of
successfully resisting hostile or
destructive action from within or
without, overt or covert.
(2) National security encompasses
both national defense and foreign
relations of the United States.
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
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57039
maintained in order to reliably provide
the intended level of service.
Natural and beneficial values of
floodplains and wetlands means
features or resources that provide
environmental and societal benefits.
Water and biological resources are often
referred to as ‘‘natural functions of
floodplains and wetlands.’’ These
values include, but are not limited to:
(1) Water resource values (storing and
conveying floodwaters, maintaining
water quality, and groundwater
recharge);
(2) Living resource values (providing
habitats and enhancing biodiversity for
fish, wildlife, and plant resources);
(3) Cultural resource values
(providing open space, natural beauty,
recreation, scientific study, historic and
archaeological resources, and education;
and
(4) Cultivated resource values
(creating rich soils for agriculture,
aquaculture, and forestry).
Natural features means characteristics
of a particular environment (e.g., barrier
islands, sand dunes, wetlands) that are
created by physical, geological,
biological, and chemical processes and
exist in dynamic equilibrium. Natural
features are self-sustaining parts of the
landscape that require little or no
maintenance to continue providing their
ecosystem services (functions).
New construction means the
construction of a new structure or
facility or the replacement of a structure
or facility which has been totally
destroyed. New construction includes
permanent installation of temporary
housing units. New construction in
wetlands includes draining, dredging,
channelizing, filling, diking,
impounding, and related activities.
*
*
*
*
*
Orders means Executive Order 11988,
Floodplain Management, as amended,
and Executive Order 11990, Protection
of Wetlands.
Practicable means capable of being
done within existing constraints. The
test of what is practicable depends on
the situation and includes consideration
of all pertinent factors, such as natural
environment, social concerns, economic
aspects, legal constraints, and agency
authorities.
*
*
*
*
*
Regulatory floodway means the area
regulated by Federal, State, or local
requirements to provide for the
discharge of the base flood so the
cumulative rise in the water surface is
no more than a designated amount
above the base flood elevation.
Restore means to reestablish a setting
or environment in which the natural
functions of the floodplain can operate.
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Structure means a walled and roofed
building, including a temporary housing
unit (manufactured housing) or a gas or
liquid storage tank.
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 percent of the pre-disaster 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.
Substantial improvement includes work
to address substantial damage to a
structure or facility. If a facility is an
essential link in a larger system, the
percentage of damage will be based on
the cost of repairing the damaged
facility relative to 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.
*
*
*
*
*
Support of floodplain and wetland
development means to, directly or
indirectly, encourage, allow, serve, or
otherwise facilitate development in
floodplains or wetlands. Development
means any man-made change to
improved or unimproved real estate,
including but not limited to new
construction, mining, dredging, filling,
grading, paving, excavation or drilling
operations, or storage of equipment or
materials. Direct support results from
actions within floodplains or wetlands,
and indirect support results from
actions outside of floodplains or
wetlands.
Wetlands means those areas which
are inundated or saturated by surface or
ground water with a frequency
sufficient to support, or that under
normal hydrologic conditions does or
would support, a prevalence of
vegetation or aquatic life typically
adapted for life in saturated or
seasonally saturated soil conditions,
including wetlands areas separated from
their natural supply of water as a result
of construction activities such as
structural flood protection methods or
solid-fill road beds, and activities such
as mineral extraction and navigation
improvements. Examples of wetlands
include, but are not limited to, swamps,
fresh and salt water marshes, estuaries,
bogs, beaches, wet meadows, sloughs,
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potholes, mud flats, river overflows, and
other similar areas. This definition is
intended to be consistent with the
definition utilized by the U.S. Fish and
Wildlife Service.
■ 6. Amend § 9.5 by revising paragraph
(a)(3), the first sentence of paragraph
(b)(1), and paragraphs (c) through (g) to
read as follows:
§ 9.5
Scope.
(a) * * *
(3) The amendments to this part made
on September 9, 2024 apply to new
actions for which assistance is made
available pursuant to declarations under
the Robert T. Stafford Disaster Relief
and Emergency Assistance Act of 1988
on or after September 9, 2024 and new
actions for which assistance is made
available pursuant to notices of funding
opportunities published on or after
September 9, 2024. For ongoing actions
for which assistance was made available
prior to that date, legacy program
regulations (available at https://
www.fema.gov) shall apply.
(b) * * *
(1) Executive Order 11990, Protection
of Wetlands, contains a limited
exemption not found in Executive Order
11988, Floodplain Management, as
amended. * * *
*
*
*
*
*
(c) Decision-making involving certain
categories of actions. The provisions set
forth in this part are not applicable to
the actions enumerated in paragraphs
(c)(1) through (10) of this section except
that the Regional Administrators shall
comply with the spirit of Executive
Order 11988, as amended, and
Executive Order 11990 to the extent
practicable. For any action which is
excluded from the actions enumerated
below, the full 8-step process applies
(see § 9.6) (except as indicated at
paragraphs (d), (e), and (g) of this
section regarding other categories of
partial or total exclusion). The
provisions of this part do not apply to
the following (all references are to the
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) Emergency Communications
(section 418);
(4) Emergency Public Transportation
(section 419);
(5) Fire Management Assistance
(section 420), except for hazard
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mitigation assistance under sections 404
and 420(d);
(6) 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;
(7) The following Federal Assistance
to Individuals and Households Program
(section 408) categories of assistance:
(i) Financial assistance for temporary
housing (section 408(c)(1)(A));
(ii) Lease and repair of rental units for
temporary housing (section
408(c)(1)(B)(ii)), except that Step 1
(§ 9.7) shall be carried out;
(iii) Repairs (section 408(c)(2));
(iv) Replacement (section 408(c)(3));
and
(v) Financial assistance to address
other needs (section 408(e)).
(8) Debris clearance and removal
(sections 403 and 502), except those
grants involving non-emergency
disposal of debris within a floodplain or
wetland (section 407);
(9) Actions under sections 406 and
407 of less than $18,000. Such $18,000
amount will be adjusted annually to
reflect changes in the Consumer Price
Index for All Urban Consumers
published by the Department of Labor;
(10) 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) Abbreviated decision-making
process applying steps 1, 4, 5, and 8.
The Regional Administrator shall apply
steps 1, 4, 5, and 8 of the decisionmaking process (§§ 9.7, 9.10, and 9.11)
to repairs under section 406 of the
Robert T. Stafford Disaster Relief and
Emergency Assistance Act of 1988,
Public Law 93–288, as amended,
between $18,000 and $91,000. Such
$18,000 and $91,000 amounts will be
adjusted annually to reflect changes in
the Consumer Price Index for All Urban
Consumers published by the
Department of Labor. For any action
which is excepted from the actions
listed below (except as otherwise
provided in this section regarding other
categories of partial or total exclusion),
the full 8-step process applies (See
§ 9.6). The Regional Administrator may
also require certain other portions of the
decision-making process to be carried
out for individual actions as is deemed
necessary. Steps 1, 4, 5, and 8 of the
decision-making process apply to
actions under section 406 of the Stafford
Act referenced above except for:
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(1) Actions in a floodway or coastal
high hazard area; or
(2) New construction, substantial
improvement, or repairs to address
substantial damage of structures or
facilities; or
(3) Facilities or structures which have
previously sustained damage from
flooding due to a major disaster or
emergency or on which a flood
insurance claim has been paid; or
(4) Critical actions.
(e) Abbreviated decision-making
process applying steps 1, 2, 4, 5, and 8.
The Regional Administrator shall apply
steps 1, 2, 4, 5, and 8 of the decisionmaking process (§§ 9.7, 9.8, 9.10, and
9.11, see § 9.6) to certain actions under
Section 406 of the Robert T. Stafford
Disaster Relief and Emergency
Assistance Act of 1988, Public Law 93–
288, as amended, provided in
paragraphs (e)(1) and (2) of this section.
Steps 3 and 6 (§ 9.9) shall be carried out
except that alternative sites outside the
floodplain or wetland need not be
considered. After assessing impacts of
the proposed action on the floodplain or
wetlands and of the site on the proposed
action, alternative actions to the
proposed action, if any, and the ‘‘no
action’’ alternative shall be considered.
The Regional Administrator may also
require certain other portions of the
decision-making process to be carried
out for individual actions as is deemed
necessary. For any action which is
excluded from the actions listed below
(except as otherwise provided in this
section regarding other categories of
partial or total exclusion), the full 8-step
process applies (see § 9.6). The Regional
Administrator shall apply steps 1, 2, 4,
5, and 8 of the decision-making process
(§§ 9.7, 9.8, 9.10, and 9.11, see § 9.6) to:
(1) Replacement of building contents,
materials, and equipment (section 406).
(2) Repairs under section 406 to
damaged facilities or structures, except
any such action for which one or more
of the following is applicable:
(i) FEMA estimated cost of repairs is
more than 50 percent of the estimated
reconstruction cost of the entire facility
or structure or is more than $364,000.
Such $364,000 amount will be adjusted
annually to reflect changes in the
Consumer Price Index for All Urban
Consumers published by the
Department of Labor; or
(ii) The action is located in a
floodway or coastal high hazard area; or
(iii) Facilities or structures which
have previously sustained structural
damage from flooding due to a major
disaster or emergency or on which a
flood insurance claim has been paid; or
(iv) The action is a critical action.
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(f) Other categories of actions. Based
upon the completion of the 8-step
decision-making process (§ 9.6), the
Regional Administrator may find that a
specific category of actions either offers
no potential for carrying out the
purposes of the Orders and shall be
treated as those actions listed in
paragraph (c) of this section, or has no
practicable alternative sites and shall be
treated as those actions listed in
paragraph (e) of this section, or has no
practicable alternative actions or sites
and shall be treated as those actions
listed in paragraph (d) of this section.
This finding will be made in
consultation with FEMA Resilience and
the Council on Environmental Quality
as provided in section 2(d) of Executive
Order 11988, as amended. Public notice
of each of these determinations shall
include publication in the Federal
Register and a 30-day comment period.
(g) The National Flood Insurance
Program (NFIP). (1) FEMA Resilience
shall apply the 8-step decision-making
process to program-wide actions under
the NFIP, including all regulations,
procedures, and other issuances making
or amending program policy, and the
establishment of programmatic
standards or criteria. FEMA Resilience
shall not apply the 8-step decisionmaking process to the application of
programmatic standards or criteria to
specific situations. Thus, for example,
FEMA Resilience would apply the 8step process to a programmatic
determination of categories of structures
to be insured, but not to whether to
insure each individual structure.
(2) The provisions set forth in this
part are not applicable to the actions
enumerated below except that FEMA
Resilience shall comply with the spirit
of the Orders to the extent practicable:
(i) The issuance of individual flood
insurance policies and policy
interpretations;
(ii) The adjustment of claims made
under the Standard Flood Insurance
Policy;
(iii) The hiring of independent
contractors to assist in the
implementation of the NFIP;
(iv) The issuance of individual flood
insurance maps, Map Information
Facility map determinations, and map
amendments; and
(v) The conferring of eligibility for
emergency or regular program (NFIP)
benefits upon communities.
■ 7. Revise § 9.6 to read as follows:
§ 9.6
Decision-making process.
(a) Purpose. This section sets out the
floodplain management and wetlands
protection decision-making process to
be followed by the Agency in applying
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the Orders to its actions. The numbering
of Steps 1 through 8 does not require
that the steps be followed sequentially.
As information is gathered through the
decision-making process, and as
additional information is needed,
reevaluation of lower numbered steps
may be necessary.
(b) Decision-making process. Except
as otherwise provided in § 9.5 regarding
categories of partial or total exclusion
when proposing an action, the Agency
shall apply the 8-step decision-making
process. FEMA shall:
(1) Step 1. Determine whether the
proposed action is located in a
floodplain and/or a wetland as
established by § 9.7; and whether it has
the potential to affect or be affected by
a floodplain or wetland (see § 9.7);
(2) Step 2. Notify the public at the
earliest possible time of the intent to
carry out an action in a floodplain or
wetland, and involve the affected and
interested public in the decision-making
process (see § 9.8);
(3) Step 3. Identify and evaluate
practicable alternatives to locating the
proposed action in a floodplain or
wetland (including alternative sites,
actions, natural features, nature-based
approaches, and the ‘‘no action’’ option)
(see § 9.9). If a practicable alternative
exists outside the floodplain or wetland
FEMA must locate the action at the
alternative site.
(4) Step 4. Identify the potential direct
and indirect impacts associated with the
occupancy or modification of
floodplains and wetlands and the
potential direct and indirect support of
floodplain and wetland development
that could result from the proposed
action (see § 9.10);
(5) Step 5. Minimize the potential
adverse impacts to or within floodplains
and wetlands and minimize support of
floodplain and wetland development
identified under Step 4. Restore and
preserve the natural and beneficial
values served by floodplains, and
preserve and enhance the natural and
beneficial values served by wetlands.
Integrate nature-based approaches
where appropriate (see § 9.11);
(6) Step 6. Reevaluate the proposed
action to determine first, if it is still
practicable in light of its exposure to
flood hazards, the extent to which it
will aggravate hazards to others, and its
potential to disrupt floodplain and
wetland values; and second, if
alternatives preliminarily rejected at
Step 3 are practicable in light of the
information gained in Steps 4 and 5.
FEMA shall not act in a floodplain or
wetland unless it is the only practicable
location (see § 9.9);
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(7) Step 7. Prepare and provide the
public with a finding and public
explanation of any final decision that
the floodplain or wetland is the only
practicable alternative (see § 9.12); and
(8) Step 8. Review the implementation
and post-implementation phases of the
proposed action to ensure that the
requirements stated in § 9.11 are fully
implemented. Oversight responsibility
shall be integrated into existing
processes.
■ 8. Amend § 9.7 by revising paragraphs
(a), (b), (c), and (d)(3) and (4) to read as
follows:
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§ 9.7 Determination of proposed action’s
location.
(a) Purpose. This section establishes
Agency procedures for determining
whether any action as proposed is
located in or affects a floodplain
established in paragraph (c) of this
section or a wetland.
(b) Information needed. (1) The
Agency shall obtain enough information
so that it can fulfill the requirements in
this part to:
(i) Avoid Federal action in floodplain
and wetland locations unless they are
the only practicable alternatives; and
(ii) Minimize harm to and within
floodplains and wetlands.
(2) In all cases, FEMA shall determine
whether the proposed action is located
in a floodplain or wetland. Information
about the floodplain as established by
paragraph (c) of this section and the
location of floodways and coastal high
hazard areas may also be needed to
comply with this part, especially § 9.11.
(3) The following additional current
and future flooding characteristics may
be identified by the Regional
Administrator as applicable:
(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.
(vi) Any other applicable flooding
characteristics.
(c) Floodplain determination. In the
absence of a finding to the contrary,
FEMA will determine that a proposed
action involving a facility or structure
that has been flooded previously is in
the floodplain. In determining if a
proposed action is in the floodplain:
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(1) FEMA shall determine whether the
action is an action subject to the FFRMS
as defined in § 9.4.
(i) If the action is an action subject to
the FFRMS, FEMA shall establish the
FFRMS floodplain area and associated
flood elevation by using the process
specified in (c)(3) of this section and
one of the following approaches:
(A) Climate-Informed Science
Approach (CISA): Using a climateinformed 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):
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;
(C) 0.2-Percent-Annual-Chance Flood
Approach (0.2PFA): The 0.2 percent
annual chance flood; or
(D) Any other method identified in an
update to the FFRMS.
(ii) FEMA may select among and
prioritize the approaches in this
paragraph (c)(1) by policy.
(iii) FEMA may provide an exception
to using the FFRMS floodplain and
corresponding flood elevation for an
action subject to the FFRMS 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, or
where the action is a mission-critical
requirement related to a national
security interest or an emergency action.
(2) If the action is not an action
subject to the FFRMS as defined in
§ 9.4, FEMA shall use, at a minimum:
(i) The 1 percent annual chance (base)
floodplain and flood elevation for noncritical actions; and
(ii) The 0.2 percent annual chance
floodplain and flood elevation for
critical actions.
(3) FEMA shall establish the
floodplain and corresponding elevation
using the best available information.
The floodplain and corresponding
elevation determined using the best
available information must be at least as
restrictive as FEMA’s regulatory
determinations under the NFIP where
such determinations are available. In
obtaining the best available information,
FEMA may consider other FEMA
information as well as other available
information, such as information from:
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(i) Department of Agriculture: Natural
Resources Conservation Service, U.S.
Forest Service;
(ii) Department of Defense: U.S. Army
Corps of Engineers;
(iii) Department of Commerce:
National Oceanic and Atmospheric
Administration;
(iv) Department of the Interior: Bureau
of Land Management, Bureau of
Reclamation, National Park Service,
U.S. Fish and Wildlife Service, United
States Geological Survey;
(v) Tennessee Valley Authority;
(vi) Department of Transportation;
(vii) Environmental Protection
Agency;
(viii) General Services
Administration;
(ix) Agencies of State, Regional, and
Indian Tribal governments; or
(x) Local sources such as Floodplain
Administrators, Regional Flood Control
Districts, or Transportation
Departments.
(4) If the sources listed in paragraph
(c)(3) of this section do not have or
know of the information necessary to
comply with the requirements in this
part, the Regional Administrator may
seek the services of a professional
registered engineer.
(5) If a decision involves an area or
location within extensive Federal or
state holdings or a headwater area and
FEMA’s regulatory determinations
under the National Flood Insurance
Program are not available, the Regional
Administrator shall seek information
from the land administering agency
before information and/or assistance is
sought from the sources listed in
paragraph (c)(3) of this section.
(d) * * *
(3) If the identified sources do not
have adequate information upon which
to base the determination, the Agency
shall carry out an on-site analysis
performed by a representative of the
FWS or other qualified individual for
wetlands characteristics based on the
definition of a wetland in § 9.4.
(4) If an action constitutes new
construction and is in a wetland but not
in a floodplain, the provisions of this
part shall apply. If the action is not in
a wetland, the Regional Administrator
shall determine if the action has the
potential to result in indirect impacts on
wetlands. If so, all potential adverse
impacts shall be minimized. For actions
which are in a wetland and the
floodplain, completion of the decisionmaking process is required. (See § 9.6).
In such a case, the wetland will be
considered as one of the natural and
beneficial values of the floodplain.
■ 9. Amend § 9.8 by revising paragraphs
(a) and (c)(1), the first sentence of
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paragraph (c)(2), and paragraphs (c)(3)
introductory text, (c)(3)(v), and (c)(4)
and (5) to read as follows:
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§ 9.8
Public notice requirements.
(a) Purpose. This section establishes
the initial notice procedures to be
followed when the Agency proposes any
action in or affecting floodplains or
wetlands.
*
*
*
*
*
(c) * * *
(1) For an action for which an
environmental impact statement is
being prepared, the Notice of Intent to
File an EIS constitutes the early public
notice if it includes the information
required under paragraph (c)(5) of this
section.
(2) For each action having national
significance for which notice is being
provided, the Agency at a minimum
shall provide notice by publication in
the Federal Register and shall provide
notice by mail to national organizations
reasonably expected to be interested in
the action. * * *
(3) The Agency shall determine
whether it has provided appropriate
notices, adequate comment periods, and
whether to issue cumulative notices
(paragraphs (c)(4), (6), and (7) of this
section) based on factors which include,
but are not limited to:
*
*
*
*
*
(v) Anticipated potential impact of the
action.
(4) For each action having primarily
local importance for which notice is
being provided, notice shall be made in
accordance with the criteria under
paragraph (c)(3) of this section, and
shall include, as appropriate:
(i) Notice through the internet or
another comparable method.
(ii) Notice to Indian tribes when
effects may occur on reservations.
(iii) Information required in the
affected State’s public notice procedures
for comparable actions.
(iv) Publication in local newspapers.
(v) Notice through other local media
including newsletters.
(vi) Notice to potential interested
community organizations.
(vii) Direct mailing to owners and
occupants of nearby or affected
property.
(viii) Posting of notice on and off site
in the area where the action is to be
located.
(ix) Public hearing.
(5) The notice shall:
(i) Describe the action, its purposes,
and a statement of the intent to carry out
an action affecting or affected by a
floodplain or wetland;
(ii) Based on the factors in paragraph
(c)(3) of this section, include a map of
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the area and other identification of the
floodplain and/or wetland areas which
is of adequate scale and detail;
alternatively, 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 or may
provide a link to access the map online;
(iii) Based on the factors in paragraph
(c)(3) of this section, describe the type,
extent, and degree of hazard involved
and the floodplain or wetland values
present; and
(iv) Identify the responsible official or
organization for implementing the
proposed action, and from whom
further information can be obtained.
*
*
*
*
*
■ 10. Amend § 9.9 by:
■ a. Revising paragraphs (a)(1), (b)(2),
and (c)(1) through (4);
■ b. Adding paragraph (c)(5);
■ c. Revising paragraphs (d), (e)(1)(i),
(iii), and (iv), (e)(2) introductory text,
(e)(3) introductory text, and (e)(4); and
■ d. Lifting the suspension of paragraph
(e)(6) and removing the paragraph.
The revisions and additions read as
follows:
§ 9.9 Analysis and reevaluation of
practicable alternatives.
(a) * * * *
(1) This section expands upon the
directives set out in § 9.6 of this part in
order to clarify and emphasize the
requirements to avoid floodplains and
wetlands unless there is no practicable
alternative.
*
*
*
*
*
(b) * * *
(2) Alternative actions which serve
essentially the same purpose as the
proposed action, but which have less
potential to affect or be affected by the
floodplain or wetlands. In developing
the alternative actions, the Agency shall
use, where possible, natural systems,
ecosystem processes, and nature-based
approaches; and
*
*
*
*
*
(c) * * *
(1) Natural environment (including,
but not limited to topography, habitat,
hazards, when applicable);
(2) Social concerns (including, but not
limited to aesthetics, historical and
cultural values, land patterns, when
applicable);
(3) Economic aspects (including, but
not limited to costs of space,
technology, construction, services,
relocation, when applicable);
(4) Legal constraints (including, but
not limited to deeds and leases, when
applicable); and
(5) Agency authorities.
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57043
(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.
(2) If no practicable alternative exists
outside the floodplain or wetland, in
order to carry out the action the
floodplain or wetland must itself be a
practicable location in light of the
review required in this section.
(e) * * *
(1) * * *
(i) The action is still practicable at a
floodplain or wetland site, considering
the flood risk and the ensuing
disruption of natural values;
*
*
*
*
*
(iii) The scope of the action can be
limited to increase the practicability of
previously rejected non-floodplain or
wetland sites and alternative actions;
and
(iv) Harm to or within the floodplain
can be minimized using all practicable
means.
(2) Take no action in a floodplain
unless the importance of the floodplain
site clearly outweighs the requirements
to:
*
*
*
*
*
(3) Take no action in a wetland unless
the importance of the wetland site
clearly outweighs the requirements to:
*
*
*
*
*
(4) In carrying out this balancing
process, give the factors in paragraphs
(e)(2) and (3) of this section great
weight.
*
*
*
*
*
■ 11. Amend § 9.10 by revising
paragraph (a), the second sentence of
paragraph (b), and paragraphs (c) and
(d) to read as follows:
§ 9.10 Identify impacts of proposed
actions.
(a) This section ensures that the
effects of proposed Agency actions are
identified.
(b) * * * Such identification of
impacts shall be to the extent necessary
to comply with the requirements of this
part to avoid floodplain and wetland
locations unless they are the only
practicable alternatives to minimize
harm to and within floodplains and
wetlands.
(c) This identification shall consider
whether the proposed action will result
in an increase in the useful life of any
structure or facility in question,
maintain the investment at risk and
exposure of lives to the flood hazard or
forego an opportunity to restore the
natural and beneficial values served by
floodplains or wetlands.
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(d) In the review of a proposed or
alternative action, the Regional
Administrator shall consider and
evaluate: impacts associated with
modification of wetlands and
floodplains regardless of its location;
additional impacts which may occur
when certain types of actions may
support subsequent action which have
additional impacts of their own; adverse
impacts of the proposed actions on lives
and property and on natural and
beneficial floodplain and wetland
values; and the three categories of
factors listed below:
(1) Flood hazard-related factors.
These include, but are not limited to,
the factors listed in § 9.7(b)(3);
(2) Natural values-related factors.
These include, but are not limited to:
water resource values, as in storing and
conveying floodwaters, maintaining
water quality, and groundwater
recharge; living resource values, as in
providing habitats and enhancing
biodiversity for fish and wildlife and
plant resources; cultural resource
values, as in providing open space,
natural beauty, recreation, scientific
study, historical and archaeological
resources, and education; and cultivated
resource values, as in creating rich soils
for agriculture, aquaculture, and
forestry.
(3) Factors relevant to a proposed
action’s effects on the survival and
quality of wetlands. These include, but
are not limited to: Public health, safety,
and welfare, including water supply,
quality, recharge and discharge;
pollution; flood and storm hazards; and
sediment and erosion; maintenance of
natural systems, including conservation
and long term productivity of existing
flora and fauna, species and habitat
diversity and stability, hydrologic
utility, fish, wildlife, timber, and food
and fiber resources; and other uses of
wetlands in the public interest,
including recreational, scientific, and
cultural uses.
■ 12. Amend § 9.11 by:
■ a. Revising paragraphs (a) and (c)(1);
■ b. Revising the first sentence of
paragraph (d) introductory text and
revising paragraphs (d)(1) introductory
text, (d)(2) through (4), (d)(5)
introductory text, and (d)(9);
■ c. Lifting the suspension of paragraph
(e)(4) and removing paragraph (e); and
■ d. Redesignating paragraph (f) as
paragraph (e) and revising it.
The revisions read as follows:
§ 9.11
Mitigation.
(a) Purpose. This section expands
upon the directives set out in § 9.6 of
this part and sets out the mitigative
actions required if the preliminary
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determination is made to carry out an
action that affects or is in a floodplain
or wetland.
*
*
*
*
*
(c) * * *
(1) Potential harm to lives and the
investment from flooding based on flood
elevations as established by § 9.7(c);
*
*
*
*
*
(d) Minimization standards. 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). * * *
(1) There shall be no new
construction or substantial
improvement in a floodway and no new
construction in a coastal high hazard
area, except for:
*
*
*
*
*
(2) For a structure which is a
functionally dependent use or which
facilitates an open space use, the
following applies: Any construction of a
new or substantially improved structure
in a coastal high hazard area must be
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
floodplain as established by § 9.7(c).
The structure shall be anchored so as to
withstand velocity waters and hurricane
wave wash.
(3) The following applies to 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
elevation of the floodplain as
established by § 9.7(c).
(ii) If the subject structure is
nonresidential, instead of elevating the
structure, FEMA may approve the
design of the structure and its attendant
utility and sanitary facilities so that the
structure is watertight below the flood
elevation 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.
(iii) The provisions of paragraphs
(d)(3)(i) and (ii) of this section do not
apply to the extent that FEMA
Resilience has granted an exception
under § 60.6(b) of this chapter, or the
community has granted a variance
which the Regional Administrator
determines is consistent with § 60.6(a)
of this chapter. In a community which
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does not have a FEMA regulatory
product in effect, FEMA may approve a
variance from the standards of
paragraphs (d)(3)(i) and (ii) of this
section, after compliance with the
standards of § 60.6(a).
(4) There shall be no encroachments,
including but not limited to fill, new
construction, substantial improvements
of structures or facilities, or other
development within a designated
regulatory floodway that would result in
any increase in flood elevation within
the community during the occurrence of
the 1 percent annual chance (base) flood
discharge. Until a regulatory floodway is
designated, no fill, new construction,
substantial improvements, or other
development shall be permitted within
the 1 percent annual chance (base)
floodplain unless it is demonstrated that
the cumulative effect of the proposed
development, when combined with all
other existing and anticipated
development, will not increase the
water surface elevation of the 1 percent
annual chance (base) flood more than
the amount designated by the NFIP or
the community, whichever is most
restrictive.
(5) Even if an action is a functionally
dependent use or facilitates open space
uses (under paragraph (d)(1) or (2) of
this section) and does not increase flood
heights (under paragraph (d)(4) of this
section), such action may only be taken
in a floodway or coastal high hazard
area if:
*
*
*
*
*
(9) In the replacement of building
contents, materials and equipment, the
Regional Administrator shall require as
appropriate, flood proofing and/or
elevation 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 by
§ 9.7(c).
(e) Restore and preserve. (1) For any
action taken by the Agency which
affects the floodplain or wetland and
which has resulted in, or will result in,
harm to the floodplain or wetland, the
Agency shall act to restore and preserve
the natural and beneficial values served
by floodplains and wetlands.
(2) Where floodplain or wetland
values have been degraded by the
proposed action, the Agency shall
identify, evaluate, and implement
measures to restore the values.
(3) If an action will result in harm to
or within the floodplain or wetland, the
Agency shall design or modify the
action to preserve as much of the
natural and beneficial floodplain and
wetland values as is possible.
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13. Amend § 9.12 by:
a. Redesignating paragraphs (d)
introductory text and (d)(1) through (6)
as paragraphs (d)(1) introductory text
and (d)(1)(i) through (vi), respectively;
and
■ c. Designate the undesignated text
after newly redesignated paragraph
(d)(1)(vi) as paragraph (d)(2) and revise
it.
The revision reads as follows:
■
■
§ 9.12
Final public notice.
*
*
*
*
*
(d) * * *
(2) When a damaged structure or
facility is already being repaired by the
State or local government at the time of
the project application, the
requirements of Steps 2 and 7 (§ 9.8 and
this section) may be met by a single
notice. Such notice shall contain all the
information required by both sections.
■ 14. Revise § 9.13 to read as follows:
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§ 9.13 Particular types of temporary
housing.
(a) This section sets forth the
procedures whereby the Agency will
provide certain specified types of
temporary housing at a private,
commercial, or group site.
(b) Prior to providing the temporary
housing described in paragraph (a) of
this section, the Agency shall comply
with the provisions of this section. For
temporary housing not enumerated
above, the full 8-step process (see § 9.6)
applies.
(c) The actions described in paragraph
(a) of this section are subject to the
following decision-making process:
(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.
(2) No temporary housing unit may be
placed on a site in a floodway or coastal
high hazard area.
(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. The following
factors shall be substituted for the
factors in § 9.9(c) and (e)(2) through (4):
(i) Speedy provision of temporary
housing;
(ii) Potential flood risk to the
temporary housing occupant;
(iii) Cost effectiveness;
(iv) Social and neighborhood patterns;
(v) Timely availability of other
housing resources; and
(vi) Potential harm to the floodplain
or wetland.
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(4) For temporary housing units at
group sites, Step 4 of the 8-step process
shall be applied in accordance with
§ 9.10.
(5) An individual or family shall not
be housed in a floodplain or wetland
(except in existing resources) unless the
Regional Administrator has complied
with the provisions of § 9.11 to
minimize harm to and within
floodplains and wetlands. The following
provisions shall be substituted for the
provisions of § 9.11(d) for temporary
housing units:
(i) No temporary housing unit may be
placed unless it is elevated to the fullest
extent practicable up to the base flood
elevation and adequately anchored.
(ii) No temporary housing unit may be
placed if such placement is inconsistent
with the criteria of the NFIP (44 CFR
parts 59 and 60) or any more restrictive
Federal, State, or local floodplain
management standard. Such standards
may require elevation to the base flood
elevation in the absence of a variance.
(iii) Temporary housing units shall be
elevated on open works (walls,
columns, piers, piles, etc.) rather than
on fill where practicable.
(iv) To minimize the effect of floods
on human health, safety and welfare,
the Agency shall:
(A) Where appropriate, integrate all of
its proposed actions in placing
temporary housing units for temporary
housing in floodplains into existing
flood warning or preparedness plans
and ensure that available flood warning
time is reflected;
(B) Provide adequate access and
egress to and from the proposed site of
the temporary housing unit; and
(C) Give special consideration to the
unique hazard potential in flash flood
and rapid-rise areas.
(6) FEMA shall comply with Step 2
Early Public Notice (§ 9.8(c)) and Step 7
Final Public Notice (§ 9.12). In
providing these notices, the emergency
nature of temporary housing shall be
taken into account.
(7) FEMA shall carry out the actions
in accordance with Step 8, ensuring the
requirements of this section and the
decision-making process are fully
integrated into the provision of
temporary housing.
(d) The following applies to the
permanent installation of a temporary
housing unit as part of a sale or disposal
of temporary housing:
(1) FEMA shall not permanently
install temporary housing units in
floodways or coastal high hazard areas.
FEMA shall not permanently install a
temporary housing unit in floodplains
as established by 9.7(c) or wetlands
unless there is full compliance with the
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Fmt 4701
Sfmt 4700
57045
8-step process. Given the vulnerability
of temporary housing units 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 temporary housing
unit for permanent housing; and
(ii) A compelling requirement to
permanently install the unit in a
floodplain.
(2) FEMA shall not permanently
install temporary housing units in the
floodplain as established by § 9.7(c)
unless they are or will be elevated at
least to the elevation of the floodplain
as established by § 9.7(c).
(3) The Regional Administrator shall
notify FEMA Resilience of each instance
where a floodplain location has been
found to be the only practicable
alternative for permanent installation of
a temporary housing unit.
■ 15. Amend § 9.14 by revising
paragraphs (a), (b)(4), (5), and (6),
(b)(7)(ii) and (iii), and (b)(9) to read as
follows:
§ 9.14
Disposal of Agency property.
(a) This section sets forth the
procedures whereby the Agency shall
dispose of property.
(b) * * *
(4) Identify the potential impacts and
support of floodplain and wetland
development associated with the
disposal of the property in accordance
with § 9.10;
(5) Identify the steps necessary to
minimize, restore, preserve and enhance
in accordance with § 9.11. For disposals,
this analysis shall address all four of
these components of mitigation where
unimproved property is involved, but
shall focus on minimization through
elevation or floodproofing and
restoration of natural values where
improved property is involved;
(6) Reevaluate the proposal to dispose
of the property in light of its exposure
to the flood hazard and its natural
values-related impacts, in accordance
with § 9.9. This analysis shall focus on
whether it is practicable in light of the
findings from §§ 9.10 and 9.11 to
dispose of the property, or whether it
must be retained. If it is determined that
it is practicable to dispose of the
property, this analysis shall identify the
practicable alternative that best achieves
the Agency’s mitigation responsibility.
(7) * * *
(ii) Properties located inside the
floodplain but outside of the floodway
and the coastal high hazard area; and
(iii) Properties located in a floodway,
regulatory floodway, or coastal high
hazard area.
*
*
*
*
*
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57046
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(9) The Agency shall ensure that the
applicable mitigation requirements are
fully implemented in accordance with
§ 9.11(c).
*
*
*
*
*
■ 16. Amend § 9.16 by revising
paragraphs (b) introductory text, (b)(2)
through (5), and (c) to read as follows:
§ 9.16
Guidance for applicants.
*
*
*
*
(b) This shall be accomplished
primarily through amendment of all
Agency instructions to applicants, and
also through contact made by agency
staff during the normal course of their
activities, to fully inform prospective
applicants of:
*
*
*
*
*
(2) The decision-making process to be
used by the Agency in making the
determination of whether to take an
action in or affecting floodplains or
wetlands as set out in § 9.6;
(3) The practicability analysis as set
out in § 9.9;
(4) The mitigation responsibilities as
set out in § 9.11;
(5) The public notice and involvement
process as set out in §§ 9.8 and 9.12; and
*
*
*
*
*
(c) Guidance to applicants shall be
provided, where possible, prior to the
time of application in order to minimize
potential delays in the Agency’s
processing of the application due to
failure of applicants to follow the
provisions in this part.
■ 17. Amend § 9.17 by revising
paragraphs (a), (b) introductory text,
(b)(3) through (5), (c), and (d) to read as
follows:
khammond on DSKJM1Z7X2PROD with RULES2
*
VerDate Sep<11>2014
16:41 Jul 10, 2024
Jkt 262001
§ 9.17
Instructions to applicants.
(a) Purpose. 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. This
section provides notice to applicants for
Agency assistance of both the criteria
that FEMA is required to follow, and the
applicants’ responsibilities under this
part.
(b) Responsibilities of applicants.
Based upon the guidance provided by
the Agency under § 9.16, the guidance
included in the U.S. Water Resources
Council’s Guidelines for Implementing
Executive Order 11988, Floodplain
Management, and Executive Order
13690, Establishing a Federal Flood Risk
Management Standard and a Process for
Further Soliciting and Considering
Stakeholder Input, and based upon the
provisions of the Orders and this part,
applicants for Agency assistance shall
recognize and reflect in their
application:
*
*
*
*
*
(3) The practicability analysis as set
out in § 9.9;
(4) The mitigation responsibilities as
set out in § 9.11;
(5) The public notice and involvement
process as set out in §§ 9.8 and 9.12; and
*
*
*
*
*
(c) Provision of supporting
information. Applicants for Agency
assistance may be required to provide
supporting information relative to the
various responsibilities set out in
PO 00000
Frm 00118
Fmt 4701
Sfmt 9990
paragraph (b) of this section as a
prerequisite to the approval of their
applications.
(d) Approval of applicants.
Applications for Agency assistance shall
be reviewed for compliance with the
provisions in this part in addition to the
Agency’s other approval criteria.
■ 18. Amend § 9.18 by revising
paragraph (a)(1), the second sentence of
paragraph (b)(1), and the first sentence
of (b)(2) to read as follows:
§ 9.18
Responsibilities.
(a) * * *
(1) Implement the requirements of the
Orders and this part. Under §§ 9.2 and
9.6 through 9.13 and 9.15 where a
direction is given to the Agency, it is the
responsibility of the Regional
Administrator.
*
*
*
*
*
(b) * * *
(1) * * * When a decision of a
Regional Administrator relating to
disaster assistance is appealed, FEMA
Resilience may make determinations
under this part 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]
■
19. Remove appendix A to part 9.
Deanne Criswell,
Administrator, Federal Emergency
Management Agency.
[FR Doc. 2024–15169 Filed 7–10–24; 8:45 am]
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[Federal Register Volume 89, Number 133 (Thursday, July 11, 2024)]
[Rules and Regulations]
[Pages 56929-57046]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-15169]
Federal Register / Vol. 89, No. 133 / Thursday, July 11, 2024 / Rules
and Regulations
[[Page 56929]]
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DEPARTMENT OF HOMELAND SECURITY
Federal Emergency Management Agency
44 CFR Part 9
[Docket ID FEMA-2023-0026]
RIN 1660-AB12
Updates to Floodplain Management and Protection of Wetlands
Regulations To Implement the Federal Flood Risk Management Standard
AGENCY: Federal Emergency Management Agency, Department of Homeland
Security.
ACTION: Final rule.
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SUMMARY: On October 2, 2023, the Federal Emergency Management Agency
(FEMA) published a notice of proposed rulemaking (NPRM) and
supplementary policy that proposed to implement the Federal Flood Risk
Management Standard (FFRMS) and update the agency's 8-step decision-
making process for floodplain reviews by changing how FEMA defines a
floodplain with respect to certain actions and how FEMA uses natural
systems, ecosystem processes, and nature-based approaches when
developing alternatives to locating a proposed action in the
floodplain. After a careful review of the public comments received,
FEMA is now issuing a final rule that implements the proposed rule,
with some minor amendments.
DATES: This rule is effective September 9, 2024.
FOR FURTHER INFORMATION CONTACT: Portia Ross, Policy and Integration
Division Director, Office of Environmental Planning and Historic
Preservation, Resilience, DHS/FEMA, 400 C St. SW, Suite 313,
Washington, DC 20472-3020. Phone: (202) 709-0677; Email: [email protected].
SUPPLEMENTARY INFORMATION:
Contents
I. Executive Summary
A. Purpose of the Regulatory Action
B. Summary of the Notice of Proposed Rulemaking (NPRM)
C. Summary of Changes From the NPRM to the Final Rule
II. Background and Legal Authority
A. Executive Order 11988, ``Floodplain Management''
B. Statutory Authority To Require FFRMS Under FEMA Grant
Programs
C. 44 CFR Part 9, ``Floodplain Management and Protection of
Wetlands''
D. Executive Order 13690, the Federal Flood Risk Management
Standard and Subsequent Amendments to Executive Order 11988, and
Revisions to the 1978 Guidelines
E. Substantive Components of the FFRMS
F. Summary of the 2023 Proposed Rule and Proposed FFRMS Policy
G. Summary of FEMA's Final Rule and Updated Policy
III. Discussion of Public Comments and FEMA's Responses
A. Summary of Public Comments
B. Comments in Support of the Rule
C. Comments in General Opposition to the Rule
D. FEMA's Authority for Part 9 and Revisions
E. Definitions
F. FFRMS Applicability
G. FFRMS Approaches
H. FEMA's FFRMS Policy Approach
I. The FFRMS and Floodplain/Wetland Determination Data
J. FFRMS Implementation
K. Emphasis on Nature-Based Approaches
L. Other 8-Step Process Comments
M. Other Comments
N. Accessibility
O. Regulatory Impact Analysis Comments
I. Executive Summary
A. Purpose of the Regulatory Action
The purpose of this regulatory action is to finalize a rulemaking
that will improve the preparedness and resilience of communities and
Federal assets against the increasing impacts of flooding. All Federal
agencies, including FEMA, have long taken action to reduce the risk of
flood loss, to minimize the impact of floods on human safety, health,
and welfare, and to restore and preserve the natural and beneficial
values served by floodplains when carrying out certain agency
functions. Federal agencies accomplish this by applying the
longstanding 8-step decision-making process to any action they take in
floodplains to ensure they avoid, to the extent possible, the long- and
short-term adverse impacts associated with the occupancy and
modification of floodplains, and to avoid direct or indirect support of
floodplain development wherever there is a practicable alternative.
This framework was originally established in 1977 by Executive
Order 11988, ``Floodplain Management,'' (42 FR 26951) which was issued
in furtherance of the National Environmental Policy Act of 1969 (NEPA)
(42 U.S.C. 4321 et seq.), the National Flood Insurance Act of 1968 as
amended (NFIA) (42 U.S.C. 4001 et seq.), and the Flood Disaster
Protection Act of 1973, as amended (Flood Disaster Protection Act)
(Pub. L. 93-234, 87 Stat. 975). Executive Order 11988 was supplemented
by guidance called ``Floodplain Management Guidelines'' issued in 1978
by the U.S. Water Resources Council (``1978 Guidelines'').\1\ FEMA
implemented Executive Order 11988 in 1980 through the promulgation of
regulations at 44 CFR part 9, ``Floodplain Management and Protection of
Wetlands,'' \2\ which applies the 8-step decision-making process to all
actions FEMA directly takes and to all actions that it funds through
grants to eligible State, local, Tribal, and territorial (SLTT)
governments, certain private non-profits, and individuals and
households for pre- and post-emergency or disaster-related projects.
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\1\ 42 FR 6030, Feb. 10, 1978. A PDF copy of the 1978 Guidelines
can be found at this link: hud.gov/sites/documents/DOC_14216.PDF
(last accessed Jan. 24, 2024).
\2\ FEMA published an interim final rule on December 27, 1979
(44 FR 76510) and a final rule on September 9, 1980 (45 FR 59520).
Note that this part also implements a related Executive Order 11990,
``Protection of Wetlands.'' See 42 FR 26961, May 25, 1977.
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The first step in the 8-step process is to determine whether the
action FEMA proposes to take or fund will occur in a floodplain or
wetland.\3\ Section (6)(c) of Executive Order 11988 defined the term
``floodplain'' to mean, at a minimum, ``that area subject to a one
percent or greater chance of flooding in any given year,'' which is
recognized as the ``base floodplain.'' Executive Order 11988 and the
base floodplain definition remained unchanged from 1977 until 2015. In
2015, President Barack Obama amended Executive Order 11988 by adding a
new flood risk reduction standard to the existing 8-step decision-
making process to improve the Nation's resilience against the
increasing impacts of flooding.\4\ The flood risk reduction standard,
called the Federal Flood Risk Management Standard (FFRMS), is a
flexible framework to define the floodplain that allows agencies to
choose among several approaches to expand the base floodplain to a
higher vertical elevation and corresponding horizontal extent for all
Federally
[[Page 56930]]
funded projects. Federally funded projects are defined as actions where
Federal funds are used for new construction, substantial improvement,
or repairs to address substantial damage to structures and
facilities.\5\ The amendments also direct agencies to use natural
systems, ecosystem processes, and nature-based approaches when
developing alternatives to locating the action in the floodplain. The
Water Resources Council then updated the 1978 Guidelines and issued the
``Guidelines for Implementing Executive Order 11988, Floodplain
Management, and Executive Order 13690, `Establishing a Federal Flood
Risk Management Standard and a Process for Further Soliciting and
Considering Stakeholder Input' '' (``Revised Guidelines'') \6\ to
provide additional information on the use of the FFRMS.
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\3\ Any action FEMA takes in a floodplain or wetland, including
its provision of grants for disaster assistance, undergoes an
analysis pursuant to Executive Orders 11988 and 11990 (unless the
action is specifically exempted from the requirements of the
Orders). The grant recipient, therefore, generally provides
information to FEMA about the practicability of alternatives outside
the floodplain and wetland and other information to assist in the
analysis.
\4\ Executive Order 13690, ``Establishing a Federal Flood Risk
Management Standard (FFRMS) and a Process for Further Soliciting and
Considering Stakeholder Input.'' 80 FR 6425, Feb. 4, 2015. In 2017,
President Donald Trump revoked the amendments to Executive Order
11988. See Executive Order 13807, ``Establishing Discipline and
Accountability in the Environmental Review and Permitting Process
for Infrastructure Project,'' 82 FR 40463, Aug. 24, 2017. In 2021,
President Joseph Biden reinstated the amendments. See Executive
Order 14030, ``Climate Related Financial Risk,'' 86 FR 27967, May
25, 2021.
\5\ See ``Guidelines for Implementing Executive Order 11998,
Floodplain Management, and Executive Order 13690, Establishing a
Federal Flood Risk Management Standard and a Process for Further
Soliciting and Considering Stakeholder Input,'' 80 FR 64008 (Oct.
22, 2015) (providing notice of the availability of the Revised
Guidelines in the docket for the rulemaking at https://www.regulations.gov/document/FEMA-2015-0006-0358 (main content) and
https://www.regulations.gov/document/FEMA-2015-0006-0372
(appendices)) also available at https://www.fema.gov/sites/default/files/documents/fema_implementing-guidelines-EO11988-13690_10082015.pdf (last accessed Mar. 11, 2024).
\6\ 80 FR 64008, Oct. 22, 2015.
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FEMA first partially implemented the FFRMS in its grant programs
through policy using an interim approach that applied higher elevation
requirements to eligible projects in existing floodplains.\7\ FEMA then
proposed to fully implement the FFRMS in its October 2, 2023 NPRM and
supplementary policy.\8\ FEMA proposed to prioritize the use of the
Climate-Informed Science Approach (CISA) in its FFRMS implementation.
The CISA establishes the required vertical elevation and corresponding
horizontal floodplain, through the best-available, actionable
hydrologic and hydraulic data and methods that integrate current and
future changes in flooding based on climate science, in accordance with
the Revised Guidelines. When such data is not available, FEMA's NPRM
and supplementary policy proposed the use of other approaches depending
on the criticality of the action. FEMA also proposed to require the use
of natural systems, ecosystem processes, and nature-based approaches
where possible.
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\7\ See FEMA Policy 104-22-003, ``Partial Implementation of the
Federal Flood Risk Management Standard for Public Assistance
(Interim),'' June 3, 2022, found at https://www.fema.gov/sites/default/files/documents/fema_fp-104-22-0003-partial-implemetnation-ffrms-pa-interim.pdf (last accessed Jan. 24, 2024) and FEMA Policy
206-21-003-0001, ``Partial Implementation of the Federal Flood Risk
Management Standard for Hazard Mitigation Assistance Program,'' Dec.
7, 2022 found at https://www.fema.gov/sites/default/files/documents/fema_policy-fp-206-21-003-0001-implementation-ffrms-hma-program_122022.pdf (last accessed Jan. 24, 2024).
\8\ 88 FR 67870, Oct. 2, 2023; 88 FR 67697, Oct. 2, 2023.
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FEMA has authority to require application of the FFRMS as a
condition of funding in its grant programs based on the grant programs'
authorizing statutes. Congress granted FEMA the authority to provide
Federal assistance through multiple grant programs under the Robert T.
Stafford Disaster Relief and Emergency Assistance Act (Stafford
Act),\9\ the NFIA,\10\ the Homeland Security Act of 2002,\11\ the
Federal Fire Prevention and Control Act of 1974,\12\ the Earthquake
Hazards Reduction Act of 1977,\13\ and various other appropriations
acts. Under each of these authorities, FEMA may set grant eligibility
criteria consistent with the respective purposes of such programs and
FEMA's mission, including to protect Federal investments from the risks
of further damage.\14\ Under the Stafford Act and the NFIA, which
authorize the programs that fund the majority of the actions subject to
the FFRMS, FEMA has general rulemaking authority.\15\ Further, FEMA has
explicit authority under the Stafford Act to set the minimum standards
for safe land use and construction standards required in the repair or
construction of private and public facilities.\16\
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\9\ 42 U.S.C. 5121 et seq.
\10\ 42 U.S.C. 4001 et seq.
\11\ 6 U.S.C. 101 et seq; see also 6 U.S.C. 314(a)(12), which
specifically charges the Administrator with supervising various
grant programs authorized under the HSA. Such grant programs have
long been governed by floodplain management regulations at 44 CFR
part 9, see, e.g., 44 FR 76510 (Dec. 27, 1979), 45 FR 59520 (Sept.
9, 1980). See also, e.g., 2 CFR 200.300(a) (directing Federal
awarding agencies to manage and administer Federal awards in a
manner so as to ensure that Federal funding is expended and
associated programs are implemented in full accordance with the U.S.
Constitution, Federal Law, and public policy requirements including,
but not limited to, those protecting public welfare and the
environment; and requiring the Federal awarding agency to
communicate to the non-Federal entity all relevant public policy
requirements, and incorporate them either directly or by reference
in the terms and conditions of the Federal award.).
\12\ 15 U.S.C. 2229 and 2229a.
\13\ 42 U.S.C. 7701 et seq.
\14\ See, e.g., 6 U.S.C. 609 (granting FEMA approval authority
over grant funds for construction awards under its Homeland Security
Grant Program, State Homeland Security Grant Program, Urban Area
Security Initiative, Operation Stonegarden, Tribal Homeland Security
Grant Program, and Nonprofit Security Grant Program); 6 U.S.C.
1182(d)(1) (granting DHS the authority to determine the grant
requirements for the Intercity Bus Security Grant Program); 6 U.S.C.
1163(c)(1) (granting FEMA the authority to determine the grant
requirements for the Intercity Passenger Rail grant program); 46
U.S.C. 70101 (granting DHS approval authority over grant funds for
construction awards under the Port Security Grant Program); 6 U.S.C.
1135(c)(1) (granting DHS the authority to determine the grant
requirements for the Transit Security Grant Program); 33 U.S.C.
467f-2(c)(2)(A) (granting FEMA the authority to set the minimum
eligibility requirements for the Rehabilitation of High Hazard Dam
Program).
\15\ See 42 U.S.C. 5164; 42 U.S.C. 4128(a) and (b).
\16\ 42 U.S.C. 5165a(a)(1)-(2).
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This rule is an important first step toward mitigating future flood
risk that will ultimately benefit communities by allowing them to
recover from future disasters more efficiently and effectively. The
United States is experiencing increased flooding and flood risk from
changing conditions.\17\ The full extent of future changes in flood
risk has not yet been estimated across the full inventory of Federal,
State, local, Tribal, and territorial properties. However, in a survey
of Federal properties alone, an assessment identified over 40,000
individual Federal buildings and structures with a combined replacement
cost of $81 billion (in 2020 dollars) located in the current 1 percent
floodplain and approximately 160,000 structures with a total
replacement cost of $493 billion (in 2020 dollars) located in the
current 0.2 percent floodplain.\18\ Approximately 10,250 individual
Federal buildings and structures were identified in coastal areas with
a combined replacement cost of $32.3 billion that would be severely
impacted by an eight-foot sea-level rise scenario and over 12,195
individual Federal buildings and structures were identified with a
combined replacement cost of over $43.7 billion under a ten-foot
``worst case'' sea level rise scenario.\19\ The Federal fiscal exposure
presented above can be reduced by enhancing resilience. This final rule
will enhance resilience by ensuring that actions subject to the FFRMS
are designed to be resilient to both current and future flood risks to
minimize the impact of floods on human health, safety, and welfare and
to protect Federal investments by reducing the risk of flood loss.
---------------------------------------------------------------------------
\17\ As a result of climate change, flood events are on the
rise. Climate change is increasing flood risk through (1) more
``extreme'' rainfall events,'' caused by a warmer atmosphere holding
more water vapor and changes in regional precipitation patterns; and
(2) sea-level rise. See Rob Bailey, Claudio Saffioti, and Sumer
Drall, Sunk Costs: The Socioeconomic Impacts of Flooding 3 and 8,
Marsh McLennan (2021).
\18\ Federal Budget Exposure to Climate Risk. OMB Assessment
found https://www.whitehouse.gov/wp-content/uploads/2022/04/ap_21_climate_risk_fy2023.pdf (last accessed Jan. 24, 2024).
\19\ Id.
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[[Page 56931]]
B. Summary of the Notice of Proposed Rulemaking (NPRM)
On October 2, 2023, FEMA published the NPRM ``Updates to Floodplain
Management and Protection of Wetlands Regulations to Implement the
Federal Flood Risk Management Standard.'' \20\ FEMA also published
``FEMA Proposed Policy: Federal Flood Risk Management Standard
(FFRMS)'' with the proposed rule.\21\ The proposed rule sought to
change how FEMA defines a floodplain with respect to certain actions
taken by the agency and require that FEMA use natural systems,
ecosystem process, and nature-based approaches, where possible, when
developing alternatives to locating a proposed agency action in the
floodplain.
---------------------------------------------------------------------------
\20\ 88 FR 67870, Oct. 2, 2023.
\21\ 88 FR 67697, Oct 2, 2023.
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The FFRMS is a flood resilience standard that is required for
Federally funded projects and provides a flexible framework to increase
resilience against flooding and help preserve the natural values of
floodplains and wetlands. For actions subject to the FFRMS, the NPRM
proposed to update the definition of ``floodplain'' to the definition
used in the Revised Guidelines, which allows the agency to establish
the floodplain using any of the following three approaches or a fourth
approach resulting from any other method in an update to the FFRMS:
Approach 1: Climate-Informed Science Approach (CISA):
Utilizing the best-available, actionable hydrologic and hydraulic data
and methods that integrate current and future changes in flooding based
on climate science;
Approach 2: Freeboard Value Approach (FVA): The elevation
and corresponding horizontal floodplain that result from using the
freeboard \22\ value, reached by reached by adding 2 feet to the base
flood elevation (BFE) for non-critical actions (+2' FVA) and from
adding 3 feet to the BFE for critical actions (+3' FVA).
---------------------------------------------------------------------------
\22\ Freeboard is a factor of safety usually expressed in feet
above a flood level for purposes of floodplain management. See
https://www.fema.gov/glossary/freeboard (last accessed June 11,
2024).
---------------------------------------------------------------------------
Approach 3: 0.2-percent-annual-chance Flood Approach
(0.2PFA): 0.2 percent annual chance flood (also known as the 500-year
flood); or
Approach 4: the elevation and flood hazard area that
result from using any other method identified in an update to the
FFRMS.
In many cases, each of these approaches would result in a larger
floodplain and a requirement to design projects to be resilient at a
higher vertical elevation. For actions that do not meet the definition
of an action subject to the FFRMS, FEMA would continue to use the
historical floodplain definition, with minor clarifying revisions to
help stakeholders better understand the terminology. The NPRM further
proposed the use, where possible, of natural systems, ecosystem
processes, and nature-based approaches in the development of
alternatives for all actions proposed in a floodplain. FEMA proposed
other edits to 44 CFR part 9, including edits to clarify the
applicability of 44 CFR part 9 to specific FEMA programs and update the
monetary thresholds in Sec. 9.5, edits to incorporate the use of the
internet in public notice requirement in Sec. 9.8, edits to
consolidate temporary housing requirements in Sec. 9.13, and other
clarifying edits to update citations and remove outdated terminology.
C. Summary of Changes From the NPRM to the Final Rule
In this final rule, FEMA adopts the changes proposed in the NPRM
and FFRMS policy with clarifications in consideration of the relevant
comments. Consistent with comments received, FEMA's edits in this final
rule add a Federal agency (the National Park Service) to the best
available information sources list and incorporate the use of
Indigenous Knowledge by adding Indian Tribal governments to that list.
The best available information sources list appears at 44 CFR
9.7(c)(3). The list is a non-exhaustive list of resources that FEMA may
use to make floodplain determinations. Additional clarifying edits are
included in Sec. Sec. 9.5 and 9.7. The edits to the FFRMS policy
accompanying this final rule clarify the use of the 0.2PFA in coastal
areas and clarify FEMA's use of the Federal Flood Risk Management
Floodplain Determination Job Aid (FFRMS Job Aid). FEMA describes these
changes in detail below.
D. Impacts of the Final Rule
FEMA estimated the total impacts of this rule by analyzing the
impact of the FVA, 0.2PFA and CISA for FEMA's Public Assistance (PA),
Individual Assistance (IA), and Hazard Mitigation Assistance (HMA)
grant programs. FEMA did so by examining the number of projects that
would be subject to the proposed requirements in the first 10 years
after the rule's publication.\23\ FEMA's analysis focused on the costs,
benefits, and transfer payments (i.e., impacts on FEMA grants) that
would result over a 50-year period from applying the requirements of
the rule to those projects, for a total period of analysis spanning 60
years. Tables 1 and 2 show the total impacts under the three approaches
for each of the affected programs.
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\23\ FEMA used an average of the number of affected projects
during the prior 10-year period to estimate the average annual
impacts of the future 10-year period.
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[[Page 56932]]
[GRAPHIC] [TIFF OMITTED] TR11JY24.000
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\24\ To obtain the total costs as in Section 7.12, add each
individual approach to the FEMA admin cost. For example, CISA + FEMA
admin = total CISA cost.
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[[Page 56933]]
[GRAPHIC] [TIFF OMITTED] TR11JY24.001
Table 3 provides the estimated number of structures and facilities
affected by the rule over the first 10 years, assuming that each
approach is the only expansion option. Structures, which are walled and
roofed buildings, would comply with the FFRMS through elevating or
floodproofing to the required height. Facilities, which are any human-
made or human-placed items other than a structure such as roads and
bridges, would require different mitigation measures to comply with the
increased resilience standard. The monetized impacts of this rule are
representative of the floodproofing and elevation mitigation measures
that are required of structures. However, for reasons explained in more
detail later, FEMA was unable to monetize the impacts of the rule for
facilities.
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\25\ To obtain the total costs as in Section 7.12, add each
individual approach to the FEMA admin cost. For example, CISA + FEMA
admin = total CISA cost.
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[[Page 56934]]
[GRAPHIC] [TIFF OMITTED] TR11JY24.002
BILLING CODE 9111-66-C
Quantified estimates of the benefits of this rule are available for
only non-residential PA Category E projects, which are for structures.
Due to the project-specific nature of facilities projects and numerous
options for making them resilient, FEMA could not estimate the costs of
improving flood resilience of facilities.\27\ Table 2 shows that the
total 60-year benefits for non-residential PA Category E projects in
the first 10 years is $54.4 million (7 percent). This benefit is for
adding one foot of freeboard, assuming a 59-inch sea level rise
(SLR).\28\ Although the cost for PA Category E projects is $133.3
million, this cost represents 5 feet of freeboard (FEMA's assumption
for CISA).\29\ FEMA does not have data to quantify the benefits of
additional freeboard and thus the quantified benefits represent only a
portion of the increased risk reduction that would be achieved through
this rule. Ensuring projects are built to the height necessary to avoid
additional loss scenarios would provide additional unquantified
benefits of avoided damages to the structure, decreased cleanup time
and disruption to the community, and increased public health and
safety. Moreover, FEMA's use of CISA as its preferred approach would
use the best available and actionable scientific data to tailor future
flooding risk to each project ensuring that projects are built only to
the height necessary and thus maximizing net benefits. Accordingly,
FEMA believes the benefits of the rule--quantified and unquantified--
would justify its costs.
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\26\ These counts are based on the number of closed or obligated
projects at the time of analysis. It can take several years for a
project to close out or reach the obligation status after the
disaster year.
\27\ Category E projects are public buildings and contents. See
Public Assistance Fact Sheet at https://www.fema.gov/sites/default/files/2020-07/fema_public-assistance-fact-sheet_10-2019.pdf.
\28\ FEMA used one foot for benefits as the 2022 report, ``A
Benefits Analysis of Increased Freeboard for Public and
Nonresidential Buildings in Riverine and Coastal Floodplains,'' only
specifies monetary benefits for an additional one foot over current
requirements. FEMA included this number in the quantified benefits
because it is the only monetary benefit available for any freeboard
level.
A Benefits Analysis of Increased Freeboard for Public and
Nonresidential Buildings in Riverine and Coastal Floodplains. FEMA.
Draft, July 2022, page 16. Available at: https://www.regulations.gov/document/FEMA-2023-0026-0003.
\29\ Costs for the FVA may be a better comparison because they
represent 2 or 3 feet of freeboard, depending on criticality.
However, the number of projects using FVA and CISA differ, making
such a comparison difficult.
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II. Background and Legal Authority
The President issued Executive Order 11988 (42 FR 26951, May 25,
1977) as amended by Executive Order 13690, ``Establishing a Federal
Flood Risk Management Standard (FFRMS) and a Process for Further
Soliciting and Considering Stakeholder Input,'' (80 FR 6425, Feb. 4,
2015) and Executive Order 14030, ``Climate-Related Financial Risk,''
(86 FR 27967, May 25, 2021) in furtherance of the NFIA (42 U.S.C. 4001
et seq.); the Flood Disaster Protection Act of 1973, as amended (Pub.
L. 93-234, 87 Stat. 975); and the NEPA (42 U.S.C. 4321 et seq.). Each
agency is responsible for implementing Executive Order 11988, as
amended, as allowed by and consistent with applicable law within their
existing statutory authorities.\30\
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\30\ See 42 FR 26951, May 25, 1977 at Section 2(d); see also 80
FR 6425, Feb. 4, 2015 at Section 5(b).
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Section II.A below describes Executive Order 11988, the 1978
Guidelines, and the statutory authority underlying the Executive Order.
Executive Order 11988, along with the 1978 Guidelines, established an
8-step decision-making process by which Federal agencies carry out
Executive Order 11988's direction to avoid the long- and short-term
adverse impacts associated with the occupancy and modification of the
floodplain, and avoid the direct or indirect support of floodplain
development whenever there is a practicable alternative.
Next, Section II.B describes FEMA's statutory authority to require
its grant recipients to carry out repairs or construction in accordance
with specific standards. Section II.C describes FEMA's implementing
regulations at 44 CFR part 9, which closely follow the model decision-
making process under Executive Order 11988. Section II.D describes the
development of Executive Order 13690, the FFRMS, and additional
guidance in the Revised Guidelines issued in 2015, as well as
subsequent amendments to Executive Order 11988. Section II.E describes
the substantive components of the FFRMS. Section II.F. describes FEMA's
NPRM and supplementary policy implementing the FFRMS.
A. Executive Order 11988, ``Floodplain Management''
The President issued Executive Order 11988 (42 FR 26951, May 25,
1977) in furtherance of the NFIA (42 U.S.C. 4001 et seq.); the Flood
Disaster Protection Act of 1973, as amended (Pub. L. 93-234, 87 Stat.
975); and the NEPA (42 U.S.C. 4321 et seq.). The NFIA, as amended by
the Flood Disaster Protection Act establishes a multi-purpose program
to provide flood insurance, minimize exposure of property to flood
losses, minimize the damage caused by flood losses, and guide the
development of proposed construction, where practicable, away from
floodplains.\31\ The NFIA and the Flood Disaster Protection Act
highlight coordination of flood insurance with land management programs
in flood-prone areas. NEPA requires Federal agencies to analyze the
reasonably foreseeable environmental effects of proposed major Federal
actions and evaluate a reasonable range of alternatives to those
actions, which includes the evaluation of the impacts of proposed
actions in floodplains.\32\ NEPA mandates that agencies ``attain the
widest range of beneficial uses of the environment without degradation,
risk to health or safety, or other undesirable and unintended
consequences.'' \33\
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\31\ See 42 U.S.C. 4001 and 4102.
\32\ See 42 U.S.C. 4332(2)(C).
\33\ See 42 U.S.C. 4331(b)(3).
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In furtherance of and consistent with this statutory foundation,
Executive Order 11988 directs Federal agencies to avoid, to the extent
possible, the long-
[[Page 56935]]
and short-term adverse impacts associated with the occupancy and
modification of floodplains, where there is a practicable alternative.
The Executive Order directs each Federal agency to provide leadership
and take action to reduce the risk of flood loss, to minimize the
impact of floods on human safety, health, and welfare, and to restore
and preserve the natural and beneficial values served by floodplains in
carrying out its responsibilities for: (1) acquiring, managing, and
disposing of Federal lands and facilities; (2) providing federally
undertaken, financed, or assisted construction and improvements; and
(3) conducting Federal activities and programs affecting land use,
including but not limited to water and related land resources planning,
regulating, and licensing activities. Each agency has a responsibility
to evaluate the potential effects of any actions it may take in a
floodplain; to ensure that its planning, programs, and budget requests
reflect consideration of flood hazards and floodplain management; and
to prescribe procedures to implement the policies and requirements of
the Executive Order.
To meet this direction, each agency, before taking an action, must
determine whether the proposed action will occur in a floodplain.\34\
Section (6)(c) of Executive Order 11988 defined the word ``floodplain''
to mean ``the lowland and relatively flat areas adjoining inland and
coastal waters including floodprone areas of offshore islands,
including at a minimum, the area subject to a one percent or greater
chance of flooding in any given year.'' \35\ If the action will occur
in a floodplain, the agency must consider alternatives to avoid adverse
effects and incompatible development in the floodplain. If the agency
finds that the only practicable alternative requires the action to
occur in the floodplain, the agency must, prior to taking the action,
design or modify the action to minimize potential harm to or within the
floodplain. Additionally, the agency must prepare and circulate a
notice explaining why the proposed action is located in the floodplain.
Particularly relevant to FEMA, the Executive Order also requires
agencies to provide appropriate grant funding guidance to applicants to
encourage them to evaluate the effects of their proposals in
floodplains, prior to submitting grant applications.
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\34\ Any action FEMA takes in a floodplain, including its
provision of grants for disaster assistance, undergoes an analysis
pursuant to FEMA's implementation of Executive Order 11988 (unless
the action is specifically exempted from the requirements of the
Order and the implementing regulations). The grant recipient,
therefore, generally provides information to FEMA about the
practicability of alternatives outside the floodplain and other
information to assist in the analysis.
\35\ This is also referred to as the ``100-year floodplain'' or
the ``base floodplain.''
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Executive Order 11988 directs agencies to prepare implementing
procedures in consultation with the Water Resources Council (WRC),\36\
FEMA, and the Council on Environmental Quality (CEQ). As noted, the WRC
issued the 1978 Guidelines, the authoritative interpretation of
Executive Order 11988.\37\ The 1978 Guidelines provided a section-by-
section analysis, defined key terms, and outlined an 8-step decision-
making process for carrying out the directives of Executive Order
11988.
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\36\ The WRC, established by statute (42 U.S.C. 1962a-1), is
charged with maintaining a continuing study and preparing an
assessment biennially, or at such less frequent intervals as the
Council may determine, of the adequacy of supplies of water
necessary to meet the water requirements in each water resource
region in the United States and the national interest therein; and
maintaining a continuing study of the relation of regional or river
basin plans and programs to the requirements of larger regions of
the Nation and of the adequacy of administrative and statutory means
for the coordination of the water and related land resources
policies and programs of the several Federal agencies. It is
responsible for appraising the adequacy of existing and proposed
policies and programs to meet such requirements and making
recommendations to the President with respect to Federal policies
and programs.
\37\ 42 FR 6030, Feb. 10, 1978. A PDF copy of the 1978
Guidelines can be found at this link: hud.gov/sites/documents/DOC_14216.PDF (last accessed Jan. 24, 2024).
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B. Statutory Authority To Require FFRMS Under FEMA Grant Programs
FEMA has authority to require application of the FFRMS as a
condition of funding in its grant programs based on the grant programs'
authorizing statutes. Congress granted FEMA the authority to provide
Federal assistance through multiple grant programs under the Stafford
Act,\38\ the NFIA,\39\ the Homeland Security Act of 2002,\40\ the
Federal Fire Prevention and Control Act of 1974,\41\ the Earthquake
Hazards Reduction Act of 1977,\42\ and various other appropriations
acts. Under each of these authorities, FEMA may set grant eligibility
criteria consistent with the respective purposes of such programs and
FEMA's mission, including to protect Federal investments from the risks
of further damage.\43\
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\38\ 42 U.S.C. 5121 et seq.
\39\ 42 U.S.C. 4001 et seq.
\40\ 6 U.S.C. 101 et seq; see also 6 U.S.C. 314(a)(12), which
specifically charges the Administrator with supervising various
grant programs authorized under the HSA. Such grant programs have
long been governed by floodplain management regulations at 44 CFR
part 9, see, e.g., 44 FR 76510 (Dec. 27, 1979), 45 FR 59520 (Sept.
9, 1980). See also, e.g., 2 CFR 200.300(a) (directing Federal
awarding agencies to manage and administer Federal awards in a
manner so as to ensure that Federal funding is expended and
associated programs are implemented in full accordance with the U.S.
Constitution, Federal Law, and public policy requirements including,
but not limited to, those protecting public welfare and the
environment; and requiring the Federal awarding agency to
communicate to the non-Federal entity all relevant public policy
requirements, and incorporate them either directly or by reference
in the terms and conditions of the Federal award.).
\41\ 15 U.S.C. 2229 and 2229a.
\42\ 42 U.S.C. 7701 et seq.
\43\ See, e.g., 6 U.S.C. 609 (granting FEMA approval authority
over grant funds for construction awards under its Homeland Security
Grant Program, State Homeland Security Grant Program, Urban Area
Security Initiative, Operation Stonegarden, Tribal Homeland Security
Grant Program, and Nonprofit Security Grant Program); 6 U.S.C.
1182(d)(1) (granting DHS the authority to determine the grant
requirements for the Intercity Bus Security Grant Program); 6 U.S.C.
1163(c)(1) (granting FEMA the authority to determine the grant
requirements for the Intercity Passenger Rail grant program); 46
U.S.C. 70101 (granting DHS approval authority over grant funds for
construction awards under the Port Security Grant Program); 6 U.S.C.
1135(c)(1) (granting DHS the authority to determine the grant
requirements for the Transit Security Grant Program); 33 U.S.C.
467f-2(c)(2)(A) (granting FEMA the authority to set the minimum
eligibility requirements for the Rehabilitation of High Hazard Dam
Program).
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Congress enacted the Stafford Act \44\ to ``provide an orderly and
continuing means of assistance'' to State and local governments in
carrying out their responsibilities to alleviate the suffering and
damage that result from disasters by, among other responsibilities,
``encouraging hazard mitigation measures to reduce losses from
disasters, including the development of land use and construction
regulations'' and ``identifying the climate and natural hazard
resilience of vulnerable communities.'' \45\ FEMA has general authority
under the Stafford Act to ``prescribe such rules and regulations as may
be necessary and proper to carry out the provisions of [the Stafford
Act], and may exercise, either directly or through such Federal agency
as the President may designate, any power or authority conferred to the
President by [the Stafford Act].'' \46\ The Stafford Act further grants
FEMA explicit authority to set the minimum standards for safe land use
and construction standards required in the repair or construction of
private and public facilities.\47\
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\44\ 42 U.S.C. 5121 et seq.
\45\ 42 U.S.C. 5121(b)(5) and (7).
\46\ 42 U.S.C. 5164.
\47\ 42 U.S.C. 5165a(a)(1)-(2).
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Congress enacted the NFIA to authorize a flood insurance program
which is designed to ``promote the public interest by providing
appropriate protection against the perils of flood losses and
encouraging sound land use by minimizing exposure of property to
[[Page 56936]]
flood losses'' and the objectives of which should be ``integrally
related to a unified national program for flood plain management.''
\48\ FEMA has general authority under the NFIA to ``issue such
regulations as may be necessary'' to carry out its provisions.\49\
Section 404 of the NFIA grants FEMA the authority to provide flood
mitigation grant funding and requires the activities funded to be
consistent with floodplain management criteria developed by the
Administrator.\50\
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\48\ 42 U.S.C. 4001(c). As part of the floodplain management
program under the NFIP, FEMA establishes minimum floodplain
management criteria, and communities that participate in the NFIP
must adopt and enforce floodplain management regulations that
incorporate the minimum criteria. 44 CFR 59.2(b), 59.22(a)(3),
60.1(d). FEMA has determined that it is consistent with the purposes
of the NFIA to allow communities to adopt more comprehensive
floodplain management regulations that exceed the minimum
requirements. 44 CFR 60.1(d). Similarly, in its implementation of
Executive Order 11988, FEMA prohibits taking any action taken unless
it is consistent with the NFIP minimum criteria or any more
restrictive Federal, State or local floodplain management standards.
44 CFR 9.11(d)(6).
\49\ 42 U.S.C. 4128(a).
\50\ 42 U.S.C. 4104c and 4102. Please note this rulemaking does
not alter the minimum floodplain management criteria that
communities adopt to participate in the NFIP. The NFIP is a program
through which property owners in participating communities can
purchase Federal flood insurance as a protection against flood
losses. 42 U.S.C. 4011(a). As a condition of eligibility, a
community must adopt and enforce floodplain management regulations
that incorporate NFIP minimum floodplain management criteria
developed by the Administrator. 42 U.S.C. 4011(a) and (b); 42 U.S.C.
4102; 44 CFR 59.2(b), 59.22(a)(3), 60.1(d). Further information
regarding FEMA's minimum floodplain management standards for the
NFIP can be found at 44 CFR part 59 et seq. Because this rule only
applies to actions subject to the FFRMS, this rule does not change
any FEMA standards applicable to community or individual
participation in any aspect of the NFIP. In general, changes to 44
CFR part 59 et seq. would require a rulemaking to revise the
appropriate sections of the CFR.
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C. 44 CFR Part 9, ``Floodplain Management and Protection of Wetlands''
Consistent with the NFIA, the Flood Disaster Protection Act, and
NEPA, FEMA promulgated regulations implementing Executive Order 11988
at 44 CFR part 9, ``Floodplain Management and Protection of Wetlands.''
\51\ Part 9 closely follows the 1978 Guidelines in setting forth FEMA's
policy and procedures for floodplain management relating to disaster
planning, response and recovery, and hazard mitigation. Part 9
generally applies to FEMA actions, including FEMA direct actions and
FEMA's disaster and non-disaster assistance programs.\52\ Pursuant to
section 8 of Executive Order 11988, part 9 does not apply to assistance
provided for emergency work essential to save lives and protect
property and public health and safety, performed pursuant to sections
403 and 502 of the Stafford Act, as amended (42 U.S.C. 5170b and 5192).
In addition, FEMA applies part 9 programmatically to the National Flood
Insurance Program (NFIP).\53\ FEMA does not apply part 9 to site-
specific actions under the NFIP because the establishment of
programmatic criteria, rather than the application of the programmatic
criteria to individual situations, is the action with the potential to
influence or affect floodplains.\54\
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\51\ FEMA published an interim final rule on December 27, 1979
(44 FR 76510) and a final rule on September 9, 1980 (45 FR 59520).
Note this part also implements a related Executive Order 11990,
``Protection of Wetlands.'' See 42 FR 26961, May 25, 1977.
\52\ 44 CFR 9.4 defines the actions subject to the requirements,
which include federal lands and facilities, providing federal funds
for construction and improvements, and conducting activities or
programs that affect land use.
\53\ A complete list of FEMA programs to which Part 9 does not
apply appears at 44 CFR 9.5. The exemption for actions under the
NFIP is located at 44 CFR 9.5(f).
\54\ For example, Part 9 requires FEMA to apply the 8-step
process to a programmatic determination of categories of structures
to be insured but does not require FEMA to apply an 8-step review to
a determination of whether to insure each individual structure. See
44 CFR 9.5(g).
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Part 9 outlines FEMA's 8-step decision-making process for
conducting floodplain management reviews before performing certain
actions, including approval of grant funding. The 8-step decision
making process is:
(1) Determine whether the proposed action is located in a wetland
or floodplain and its potential to affect or be affected by a wetland
or floodplain;
(2) Notify the public of the intent to carry out the proposed
action within or affecting a wetland or floodplain, and involve the
affected and interested public in the decision-making process;
(3) Identify and evaluate practicable alternatives to locating the
proposed action in a floodplain or wetland, including alternative
sites, actions, and the ``no action'' option;
(4) Identify the potential direct and indirect impacts associated
with the occupancy or modification of floodplains and wetlands and the
potential direct and indirect support of floodplain and wetland
development that could result from the proposed action;
(5) Minimize the proposed action's potential adverse impacts and
support to or within the floodplains and wetlands identified under Step
4;
(6) Re-evaluate the proposed action and other practicable
alternatives identified in step 3 based on new information gained in
steps 4 and 5;
(7) Inform the public of any final decision that the floodplain or
wetland is the only practicable alternative; and
(8) Implement the action.
There are certain exclusions from all or some of the 8-steps for
certain categories of actions being funded by FEMA.\55\
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\55\ 44 CFR 9.5(c), (d), (e), and (g).
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D. Executive Order 13690, the Federal Flood Risk Management Standard
and Subsequent Amendments to Executive Order 11988, and Revisions to
the 1978 Guidelines
On January 30, 2015, the President issued Executive Order 13690,
``Establishing a Federal Flood Risk Management Standard (FFRMS) and a
Process for Further Soliciting and Considering Stakeholder Input.''
\56\ Executive Order 13690 amended Executive Order 11988 and
established the FFRMS. It required FEMA to publish an updated version
of the 1978 Guidelines (revised to incorporate the changes required by
Executive Order 13690 and the FFRMS) in the Federal Register for notice
and comment. Executive Order 13690 also required the WRC to issue final
Guidelines to provide guidance to agencies on the implementation of
Executive Order 11988, as amended, consistent with the FFRMS. FEMA,
acting on behalf of the Mitigation Framework Leadership Group (MitFLG),
published a Federal Register notice for a 60-day notice and comment
period seeking comments on a draft of the Revised Guidelines on
February 5, 2015.\57\ FEMA received over 556 separate submissions.\58\
The final Revised Guidelines were issued on October 8, 2015.\59\
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\56\ 80 FR 6425, Feb. 4, 2015. Section 5(c) of Executive Order
13690 specifically states that the order ``is not intended to, and
does not, create any right or benefit, substantive or procedural,
enforceable at law or in equity by any party against the United
States, its departments, agencies, or entities, its officers,
employees, or agents, or any other person.''
\57\ 80 FR 6530, Feb. 5, 2015.
\58\ FEMA received approximately 556 separate submissions, which
raised over 2700 separate issues and positions. Written comments
were received at a series of eight in-person listening sessions
across the country (135 submissions); verbal comments were shared
during the public comment periods of these same listening sessions
(74 commenters); comments were submitted through the FFRMS email
address (20 submissions); comments were submitted through
regulations.gov (326 submissions); and comments were submitted as
part of a petition of support (1 submission).
\59\ 80 FR 64008, Oct. 22, 2015.
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The Revised Guidelines contain an updated version of the FFRMS
(located at Appendix G of the Revised Guidelines), reiterate key
concepts from the 1978 Guidelines, and explain the new concepts
resulting from the
[[Page 56937]]
FFRMS. In response to public comments, the MitFLG clarified the
distinction between ``actions'' and ``Federally funded projects.'' On
August 22, 2016, FEMA published an NPRM entitled ``Updates to
Floodplain Management and Protection of Wetlands Regulations To
Implement Executive Order 13690 and the Federal Flood Risk Management
Standard'' in the Federal Register (81 FR 57402). The rulemaking would
have revised FEMA's regulations on ``Floodplain Management and
Protection of Wetlands'' to implement Executive Order 13690. FEMA also
proposed a supplementary policy entitled ``FEMA Policy: Guidance for
Implementing the Federal Flood Risk Management Standard (FFRMS)'' (FEMA
Policy 078-3), which would have further clarified how FEMA would apply
the FFRMS. The notice of availability and request for comments for the
supplementary policy also published in the August 22, 2016, Federal
Register at 81 FR 56558. On September 20, 2016, FEMA published a notice
of data availability regarding a draft report, the 2016 Evaluation of
the Benefits of Freeboard for Public and Nonresidential Buildings in
Coastal Areas, which had been added to the docket for the proposed rule
(81 FR 64403).
On August 15, 2017, the President issued Executive Order 13807
(``Establishing Discipline and Accountability in the Environmental
Review and Permitting Process for Infrastructure Projects'') which
revoked Executive Order 13690. See 82 FR 40463, Aug. 24, 2017.
Accordingly, on March 6, 2018, in light of the revocation of Executive
Order 13690, FEMA withdrew the August 22, 2016, NPRM and supplementary
policy (83 FR 9473). On May 20, 2021, the President issued Executive
Order 14030 (``Climate-Related Financial Risk'') \60\ reinstating
Executive Order 13690, thereby reestablishing the FFRMS. Executive
Order 14030 also states the Revised Guidelines issued in 2015 were
never revoked and remain in effect. As such, FEMA reviewed its prior
NPRM and proposed policy, and revised its approach to implementation
based on lessons learned during and since the 2016 rulemaking process.
Specifically, FEMA first partially implemented the FFRMS by policy with
respect to covered projects in existing floodplains in its Public
Assistance and Hazard Mitigation Assistance programs.\61\ FEMA next
proposed to fully implement the FFRMS through the NPRM, which proposed
updates to FEMA regulations and a supplemental FFRMS policy.\62\
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\60\ 86 FR 27967, May 25, 2021. See also Executive Order 13990
(``Protecting Public Health and the Environment and Restoring
Science To Tackle the Climate Crisis''), 86 FR 7037, Jan. 25, 2021
(revoking Executive Order 13807).
\61\ See FEMA Policy 104-22-003, ``Partial Implementation of the
Federal Flood Risk Management Standard for Public Assistance
(Interim),'' June 3, 2022 found at https://www.fema.gov/sites/default/files/documents/fema_fp-104-22-0003-partial-implemetnation-ffrms-pa-interim.pdf (last accessed Jan. 24, 2024) and FEMA Policy
206-21-003-0001, ``Partial Implementation of the Federal Flood Risk
Management Standard for Hazard Mitigation Assistance Program,'' Dec.
7, 2022 found at https://www.fema.gov/sites/default/files/documents/fema_policy-fp-206-21-003-0001-implementation-ffrms-hma-program_122022.pdf (last accessed Jan. 24, 2024).
\62\ 88 FR 67870, Oct. 2, 2023.
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E. Substantive Components of the FFRMS
The FFRMS is a flexible framework to increase resilience against
flooding and help preserve the natural values of floodplains and
wetlands.\63\ Incorporating the FFRMS will expand the floodplain and
require projects to increase their resilience to flooding. Applying the
FFRMS will help ensure that Federally funded projects will last as long
as intended. In addition, the FFRMS and Revised Guidelines require the
evaluation of natural features and nature-based approaches, where
possible, in the analysis of practicable alternatives of the decision-
making process for all Federal actions. Nature-based approaches can
also help minimize an action's impacts to the floodplain and assist in
restoring the natural and beneficial functions of floodplains.
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\63\ Although the FFRMS describes various approaches for
determining the higher vertical flood elevation and corresponding
horizontal floodplain for Federally funded projects, it is not meant
to be an ``elevation'' standard. The FFRMS is a resilience standard.
The vertical flood elevation and corresponding horizontal floodplain
determined using the approaches in the FFRMS establish the level to
which a structure or facility must be resilient to. This may include
using structural or non-structural methods to reduce or prevent
damage; elevating a structure; or, where appropriate, designing it
to adapt to, withstand, and rapidly recover from a flood event. See
``Guidelines for Implementing Executive Order 11988, Floodplain
Management, and Executive Order 13690, ``Establishing a Federal
Flood Risk Management Standard and a Process for Further Soliciting
and Considering Stakeholder Input'' (Oct. 8, 2015), found at https://www.fema.gov/sites/default/files/documents/fema_implementing-guidelines-EO11988-13690_10082015.pdf (last accessed Jan. 24, 2024).
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Under the FFRMS, a Federal agency may establish the floodplain for
actions subject to the FFRMS using any of the following approaches:
Approach 1: Climate-Informed Science Approach (CISA):
Utilizing the best-available, actionable hydrologic and hydraulic data
and methods that integrate current and future changes in flooding based
on climate science;
Approach 2: Freeboard Value Approach (FVA): Freeboard (1
percent annual chance flood elevation + X, where X is 3 feet for
critical actions and 2 feet for other actions);
Approach 3: 0.2-percent-annual-chance Flood Approach
(0.2PFA): 0.2 percent annual chance flood (also known as the 500-year
flood); or
Approach 4: the elevation and flood hazard area that
result from using any other method identified in an update to the
FFRMS.\64\
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\64\ See Executive Order 13690 Section 2(i), 80 FR 6425, 6426
(Feb. 4, 2015).
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The four approaches are described in further detail below.
FFRMS Approach 1: CISA
The Revised Guidelines state that the CISA is the preferred
approach, and that Federal agencies should use this approach when data
to support such an analysis are available and actionable. The CISA uses
existing, sound science and engineering methods (e.g., hydrologic and
hydraulic analysis and methods used to establish current flood
elevations and floodplain maps), supplemented with best available and
actionable climate science and consideration of impacts from projected
land cover/land use changes, long-term erosion, and other processes
that may alter flood hazards over the lifecycle of the Federal
investment.\65\ For areas vulnerable to coastal flood hazards, the CISA
includes consideration of the regional sea-level rise variability
during the lifecycle of the Federal action. This includes use of global
mean sea-level-rise scenarios adjusted to the local relative sea-level
conditions and would be combined with surge, tide, and wave data using
state-of-the-art science in a manner appropriate to policies,
practices, criticality, and consequences. For areas vulnerable to
riverine flood hazards (i.e., flood hazards stemming from a river
source), the CISA would account for changes in riverine conditions due
to current and future changes in climate and other factors such as land
use, by applying state-of-the-art science in a manner appropriate to
policies, practices, criticality, and consequences (risk). The CISA for
critical actions would utilize the same methodology as used for non-
critical actions that are subject to Executive Order 11988, as amended,
but with an emphasis on criticality as one of the factors for agencies
to consider when conducting the analysis.
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\65\ See Revised Guidelines, pgs. 36-37.
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[[Page 56938]]
FFRMS Approach 2: FVA
The FFRMS and Revised Guidelines define freeboard values as an
additional 2 feet added to the 1 percent annual chance flood elevation,
or, for critical actions, an additional 3 feet added to the 1 percent
annual chance flood elevation. In other words, the floodplain
established by the FVA is the equivalent of the 1 percent annual chance
floodplain, plus either 2 or 3 feet of vertical elevation, as
applicable based on criticality, and a corresponding increase in the
horizontal extent of the floodplain. The increased horizontal extent
will not be the same in every case. When the same vertical increase is
applied in multiple actions subject to the FFRMS in different areas,
the amount of the increase in the horizontal extent of the respective
floodplains will depend upon the topography of the area surrounding the
proposed location of the action.
FFRMS Approach 3: 0.2PFA
Agencies may use available 0.2 percent annual chance (or ``500-
year'') flood data as the basis of the FFRMS elevation and
corresponding floodplain extent. Under this approach, the same
floodplain and elevation is used for critical and non-critical actions.
The FFRMS and Revised Guidelines note that often the 0.2 percent annual
chance flood elevation data provided by FEMA in coastal areas only
considers storm-surge hazards; this data does not include local wave
action or storm-induced erosion that are considered in the computation
of flood elevations. The FFRMS and Revised Guidelines encourage
agencies to obtain or develop the necessary data, including wave
heights, to ensure that any 0.2 percent annual chance flood data
applied will achieve an appropriate level of flood resilience or use
the FVA approach instead for the proposed investment.
FFRMS Approach 4: Update to FFRMS
The MitFLG, in consultation with the Federal Interagency Floodplain
Management Task Force (FIFM-TF), must reassess the FFRMS annually after
seeking stakeholder input and provide recommendations to the WRC to
update the FFRMS, if warranted. The WRC must issue an update to the
FFRMS at least every 5 years. The updates ensure the floodplain
determination process for actions subject to the FFRMS reflects current
methodologies.
Further Guidance on Application of the FFRMS Approaches to Establishing
the Floodplain
The FFRMS and Revised Guidelines state that when an agency does not
use the CISA in a coastal flood hazard area and where the FEMA 0.2
percent annual chance flood elevation does not include wave height, or
a wave height has not been determined, the 0.2 percent annual chance
elevation should not be used, and the FVA should be used instead. The
FFRMS and Revised Guidelines note that where the 0.2 percent annual
chance flood elevation does not consider wave action, the result will
likely either be lower than the current base flood elevation or the
base flood elevation plus applicable freeboard. Where wave action has
been incorporated into the 0.2 percent annual chance elevation, the 0.2
percent annual chance elevation can be used.
The Revised Guidelines state that for riverine flood hazard areas,
agencies may select either the FVA or 0.2PFA (or a combination of
approaches, as appropriate) when actionable science is not available,
and an agency opts not to follow the CISA. The agency is not required
to use the higher of the elevations but may opt to do so. The elevation
standards of the FFRMS are not intended to supplant applicable State,
Tribal, territorial, or local floodplain protection standards. If such
standards exceed the FFRMS, an agency should apply those standards if
the agency determines the application of the standards is reasonable
considering the goals of Executive Order 11988, as amended.\66\
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\66\ See Revised Guidelines at 53. The Revised Guidelines
suggest agencies should apply a reasonableness standard to higher
SLTT floodplain management standards. FEMA has historically deferred
to higher local codes and standards from an SLTT government in 44
CFR 9.11(d)(6) and will continue the practice through this
rulemaking, rather than applying a case-by-case reasonableness
analysis and believes this is appropriate because of program-
specific controls that ensure higher standards are reasonable.
Specifically, in the PA program, if an SLTT government has adopted a
code or standard that exceeds minimum standards set by FEMA,
regulations at 44 CFR 206.226(d) require the code to be in place and
adopted pre-disaster which guards against an SLTT government's
adoption of unreasonably high codes and standards. With respect to
mitigation projects, they are all required to be cost-effective as a
minimum criteria of eligibility. See 42 U.S.C. 5170c(a); 42 U.S.C.
5133(b); 42 U.S.C. 4104c(c)(2)(A). This project-by-project cost-
effectiveness analysis should guard against any SLTT standards that
are unreasonably high.
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F. Summary of the 2023 Proposed Rule and Proposed FFRMS Policy
The proposed rule set forth how FEMA would implement Executive
Order 11988, as amended, the FFRMS, and the Revised Guidelines as part
of FEMA's floodplain management regulations, while also updating FEMA's
8-step process. The proposed rule included the following provisions,
which remain unchanged in this final rule except as indicated in
section I.C of this preamble.
Severability
The NPRM proposed to amend Sec. 9.3 to remove the authorities
section as redundant and to replace it with a severability section.
FEMA did not receive any comments on its proposal to include a
severability provision. The proposed severability provision is
therefore incorporated in Sec. 9.3 of this final rule without change.
FEMA believes that its authority to require an 8-step decision making
process and incorporate the FFRMS into it is well-supported in law and
policy and should be upheld in any legal challenge. However, in the
event that any portion of the proposed rule is declared invalid, FEMA
intends that the various provisions of 44 CFR part 9 be severable. The
provisions are not so interconnected that the rule's efficacy depends
on every one of them remaining in place--implementation of the
different provisions is sufficiently distinct that FEMA's aim of
updating the 8-step process and incorporating the FFRMS would still be
furthered by maintaining the other provisions. For example, if a court
were to find unlawful FEMA's inclusion of the FFRMS approaches in Sec.
9.7(c), FEMA intends to retain the inclusion of consideration of
nature-based approaches in the appropriate steps of the 8-step decision
making process and all other amendments to the 44 CFR part 9 not
affected by the court decision. Similarly, if a court were to find
unlawful FEMA's chosen approach in the proposed policy, FEMA intends to
retain the regulatory changes implementing the FFRMS. Those provisions
that are unaffected by a legal ruling can be implemented by an agency
without requiring a new round of rulemaking simply to promulgate
provisions that are not subject to a court ruling.
Conforming Changes to Definitions
The NPRM proposed to amend Sec. 9.4 to reflect the new definitions
required by the FFRMS and Revised Guidelines, while also updating other
definitions to clarify terms and leverage common usage that has evolved
since the regulation was issued. The most significant definitional
change proposed by the FFRMS was the change to the meaning of
``floodplain.'' To harmonize this change in Sec. 9.4, the NPRM
proposed to revise a few existing definitions and removed other
definitions. In addition, the NPRM proposed to revise the remaining
sections of 44 CFR part 9 that
[[Page 56939]]
refer generally to the floodplain or refer specifically to the base (or
100-year) floodplain or the 0.2 percent annual chance (or 500-year)
floodplain, for clarity.
Distinction Between ``Actions Subject to the FFRMS'' and Other FEMA
Actions
Step 1 in the 8-step process is to determine whether the proposed
action is in the floodplain. Because Executive Order 11988, as amended,
and the FFRMS revised the definition of the ``floodplain'' that
agencies use for ``Federally funded projects,'' the NPRM proposed to
revise the first step to require FEMA to determine whether the proposed
action falls within the definition of an ``action subject to the
FFRMS.'' Under the proposed rule, if FEMA determined that the action is
a Federally funded project, i.e., if FEMA determined that the action
uses FEMA funds for new construction, substantial improvement, or to
address substantial damage to a structure or facility, the FFRMS
floodplain would apply. Alternatively, if FEMA determined that the
action did not fall under the definition of an action subject to the
FFRMS, the existing floodplain analysis would remain in place. For
example, if the action was considered non-critical, the 1 percent
annual chance floodplain applied, and if the action was considered
critical, the 0.2 percent annual chance floodplain applied.
Emphasis on Nature-Based Approaches
Executive Order 11988, as amended, directs agencies to use, where
possible, natural systems, ecosystem processes, and nature-based
approaches in the development of alternatives for Federal actions in
the floodplain. The NPRM proposed to incorporate this requirement in
Sec. 9.9, which addresses the requirement to consider practicable
alternatives when determining whether to locate an action in the
floodplain. This proposed requirement would apply regardless of whether
the proposed action is a FEMA Federally funded project. To further
explain this proposed requirement, the NPRM proposed to add a
definition of ``nature-based approaches,'' meaning features designed to
mimic natural processes and provide specific services such as reducing
flood risk and/or improving water quality. The NPRM also proposed to
add a definition of ``natural features,'' meaning the characteristics
of a particular environment that are created by physical, geological,
biological, and chemical processes and exist in dynamic equilibrium.
Consistent with the Revised Guidelines, FEMA proposed to update the
factors integrated into its impact analysis and minimization measures
(Step 4 and Step 5) to identify those opportunities for beneficial
floodplain and wetland values, to include natural values related
factors that prioritize water resource values, living resource values,
and agricultural, aquacultural, and forestry resource values. Applying
natural features or nature-based approaches as alternatives furthers
the goals in 44 CFR part 9 and allows for FEMA to further encourage
those actions that increase the natural and beneficial functions of the
floodplain.
The NPRM proposed to update Step 1 of the 8-step process to
describe the floodplain determination for those actions that are
subject to the FFRMS, and Step 3 to require the consideration of
natural features and nature-based approaches in the identification and
evaluation of practicable alternatives. The NPRM also proposed to
incorporate certain additional exclusions from all or some of the 8-
steps for certain categories of actions being funded by FEMA.
Specifically, FEMA proposed to remove private bridges and debris
clearance and removal under section 502 of the Stafford Act from the 8-
step process, while also updating the monetary thresholds for actions
under sections 406 and 407 of the Stafford Act.
Proposed FFRMS Policy
The proposed FFRMS policy outlined the FFRMS approach FEMA would
use for actions subject to the FFRMS. FEMA's proposed FFRMS policy
would be applicable to actions in the FFRMS floodplain where FEMA funds
were used for new construction, substantial improvement, or to address
substantial damage. Specifically, the proposed policy would require
FEMA to determine the FFRMS floodplain according to the Climate-
Informed Science Approach (CISA) for all locations where the best-
available, actionable hydrologic and hydraulic data methods that
integrate current and future changes in flooding based on climate
science exist. When the CISA data was not available and not actionable
for a critical action, the proposed FFRMS policy would require FEMA to
determine the FFRMS floodplain as the area that would be inundated by
the higher of either the 0.2 percent annual chance flood or the 3 feet
of freeboard above the base flood elevation (BFE) for that location
(the Freeboard Value Approach or FVA). When the CISA is not available
and actionable for a non-critical action, the proposed FFRMS policy
would require FEMA to determine the FFRMS floodplain as the area that
would be inundated by the lower of either the 0.2 percent annual chance
flood or the 2 feet of freeboard above the BFE for that location (the
FVA). In coastal areas where the CISA data is not available and
actionable, the proposed FFRMS policy would require the FVA be used if
the available 0.2 percent annual chance flood elevation does not
account for wave action.
FEMA noted in the policy and the NPRM that it was coordinating
across the Federal government to develop tools, such as the FFRMS Job
Aid published in the public docket associated with this rulemaking,\67\
to assist agencies and stakeholders in determining the FFRMS floodplain
and would rely on those tools as the best available information in
making its determinations. The FFRMS Job Aid presents a general
methodology to identify the FFRMS floodplain for each of the three
approaches that relies on information from available FEMA FIRMs, U.S.
Geological Survey (USGS) ground elevations, and the 2022 Sea Level Rise
Technical Report sea level rise estimates.\68\
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\67\ See NPRM, 88 FR 67870, 67900 and FEMA Proposed Policy:
Federal Flood Risk Management Standard at pg. 5 (posted to the
public docket at https://www.regulations.gov/document/FEMA-2023-0026-0005). See also https://www.fema.gov/sites/default/files/documents/fema_ffrms-floodplain-determination-job-aid.pdf (last
accessed Jan. 24, 2024) and posted to the public docket for this
rulemaking at https://www.regulations.gov/document/FEMA-2023-0026-0004.
\68\ Id at Section 1.6.
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FEMA's proposed FFRMS policy also required that nature-based
solutions and natural features be considered and implemented where
possible to all actions that are subject to Step 3 of the 8-step
decision-making process and not just those actions subject to the
FFRMS. Nature-based solutions and natural features must be considered
as an alternative action in Step 3. Where it is not possible to use
natural features and nature-based solutions as an alternative on their
own, they would be considered in conjunction with the proposed action
as a minimization measure in Step 5.
Updated FFRMS Resources
The FFRMS approaches include the CISA, an ``approach that uses the
best-available, actionable hydrologic and hydraulic data and methods
that integrate current and future changes in flooding based on climate
science.'' The Revised Guidelines and Appendix H help to define the
``best available and actionable science,'' stating that best-available
generally refers to science, data or information that is:
[[Page 56940]]
transparent--clearly outlines assumptions, applications,
and limitations;
technically credible--transparent subject matter or more
formal external peer review, as appropriate, of processes and source
data;
usable--relevance and accessibility of the information to
its intended users; and
legitimate--perceived by stakeholders to conform to
recognized principles, rules, or standards.
Legitimacy might be achieved by existing government planning
processes with the opportunity for public comment and engagement.\69\
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\69\ See Revised Guidelines, Appendix H: Climate-Informed
Science Approach and Resources, pg.5
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Actionable science includes theories, data, analyses, models,
projections, scenarios and tools that are:
relevant to the decision under consideration;
reliable in terms of its scientific or engineering basis
and appropriate level of peer review;
understandable to those making the decision;
supportive of decisions across wide spatial, temporal, and
organizational ranges, including those of time-sensitive operational
and capital investment decision-making;
co-produced by scientists, practitioners, and
decisionmakers, and meet the needs of and are readily accessible by
stakeholders.\70\
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\70\ See Revised Guidelines, pg. 51 and Appendix H: Climate-
Informed Science Approach and Resources, pg. 5.
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Appendix H further defines a general framework for the CISA by
identifying types of changes that should be considered and discussing
the importance of considering operational life; provides an approach
for incorporating uncertainty into the CISA; and discusses a range of
data sources. The document does not prescribe or direct agencies to use
specific resources or methods.
In 2023, the Science Subgroup convened by the Flood Resilience
Interagency Working Group of the National Climate Task Force published
the FFRMS CISA State of the Science Report (``FFRMS CISA State of the
Science Report'').\71\ This report provides a review and update of the
best-available, actionable science that can support application of the
CISA, reflecting science and technology advancements made since 2015.
Like Appendix H from the Revised Guidelines, the FFRMS CISA State of
the Science Report provides non-prescriptive, scientific, and
engineering guidance for use by Federal agencies, their non-Federal
partners, and other entities in determining future flood hazards under
the FFRMS' CISA option. The FFRMS CISA State of the Science Report
refines the initial framework from Appendix H to define two specific
workflows for applying the CISA,\72\ while acknowledging that technical
competencies and capabilities needed to fully apply the CISA vary and
may exceed those available in most Federal agencies and many non-
Federal users.\73\ The Report states that workflow implementation can
be scaled to meet resource level and project requirements.\74\
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\71\ Available at https://www.whitehouse.gov/wp-content/uploads/2023/03/Federal-Flood-Risk-Management-Standard-Climate-Informed-Science-Approach-CISA-State-of-the-Science-Report.pdf?trk=public_post_comment-text (last accessed Mar. 12,
2024).
\72\ FFRMS CISA State of the Science Report, Coastal workflow
starting on pg. 11 and Riverine workflow starting on pg. 38.
\73\ Id. at pg. 5.
\74\ See id.
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The FFRMS CISA State of the Science Report specifically identifies
the latest sea level rise projections from the National Climate
Assessment as actionable.\75\ The FFRMS State of the Science Report
states each agency should factor projected regional/local sea level
change into Federal investment decisions located as far inland as the
extent of estimated tidal influence, now and in the future, using the
most appropriate methods for the scale and consequence of the
decision.\76\ The FFRMS CISA State of the Science Report also suggests
that along low-lying coastal shorelines on the Atlantic and Gulf Coasts
not subject to runup or overtopping, the appropriate sea level rise
estimates can be used similar to freeboard.\77\
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\75\ Id. at pgs. 21-22.
\76\ Id. at pg. 23.
\77\ The FFRMS CISA State of the Science Report identifies the
latest interagency Federal guidance for regionally-based SLR
projections as available and actionable by recommending that all
agencies should use these data as part of a CISA approach. At pg.
22, the Report states ``Federal agencies should apply this latest
interagency Federal guidance for regionally-based SLR projections.
Scenarios and time horizons should use a consistent national
approach based on risk tolerance and criticality.'' However, the
Report also warns against using the simplified approach with SLR in
areas subject to runup and overtopping on pg. 28 ``Notably, areas
subject to runup and overtopping can be very sensitive to changes in
water level (including due to SLR) and the variability of the
slope--so within a CISA implementation, these areas should be
treated with appropriate analysis and not simple linear addition of
flooding components.'' Based on these guidelines, the FFRMS Job Aid
establishes the use of simplified CISA in specific areas, namely in
some coastal environments, specifically along low-lying coastal
shorelines on the Atlantic and Gulf Coasts. See FFRMS Job Aid, pg.
10.
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This is the basis of the interagency implementation and supporting
tools such as the FFRMS Job Aid.\78\ The FFRMS Job Aid is a resource to
help Federal agencies and their non-Federal partners (including
potential Federal financial aid recipients) conduct a screening to
determine if a proposed Federally funded action will be located in an
FFRMS floodplain, based on the CISA, FVA, or 0.2PFA. While Appendix H
of the Revised Guidelines and the FFRMS CISA State of the Science
Report provide more general approaches that could be used to apply the
CISA with sufficient time, money and expertise,\79\ FEMA does not
believe the data and science for these broader approaches are
sufficiently available and actionable for FEMA to implement at scale.
As explained below, FEMA prioritized the type and criticality of the
action involved, the availability and actionability of the data, and
equity concerns, and determined that applying the CISA through these
broader, more complex approaches is not appropriate at this time given
the agency's role in helping people recover from disasters in an
expedited manner. FEMA instead decided to use consensus interagency
approaches that are readily accessible to implement the CISA.
---------------------------------------------------------------------------
\78\ Available at https://www.fema.gov/sites/default/files/documents/fema_ffrms-floodplain-determination-job-aid.pdf (last
accessed Mar. 12, 2024).
\79\ FFRMS CISA State of the Science Report, pg.5, Coastal
workflow starting on pg. 11, and Riverine workflow starting on pg.
38.
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To help FEMA implement the FFRMS, the agency will leverage
interagency tools. Specifically, FEMA will follow the methodology laid
out in the FFRMS Job Aid to determine whether a site for a proposed
action subject to the FFRMS is located within an FFRMS floodplain and
if so, the FFRMS flood elevation for that site. FEMA will follow the
CISA, FVA, or 0.2PFA Job Aid methodologies according to FEMA's FFRMS
policy. Consistent with the FFRMS Job Aid, FEMA finds that the CISA is
currently available and actionable for low-lying coastal shorelines on
the Atlantic and Gulf Coasts.\80\ If a site poses other complexities,
such as steep bluffs or shorelines armored by large seawalls or similar
flood-control structures, the CISA is not available and actionable \81\
and FEMA will instead use the FVA or 0.2PFA, per the agency's policy.
For the CISA, FVA and 0.2PFA, FEMA will follow the processes outlined
in 44 CFR 9.7 and in FEMA Policy 104-008-2: Guidance on the Use of
Available Flood
[[Page 56941]]
Hazard Information.\82\ For example, if a preliminary FIRM has more
restrictive flood hazard data than an effective FIRM, FEMA will use the
preliminary FIRM to identify the appropriate flood elevation.\83\
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\80\ FFRMS Job Aid, pg. 10.
\81\ Id.
\82\ Available at https://www.fema.gov/sites/default/files/2020-04/Available_Flood_Hazard_Information_Policy_104-008-2.pdf (last
accessed Mar. 12, 2024).
\83\ See FFRMS Policy, pg. 5.
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Consistent with the FFRMS Job Aid, to determine whether a proposed
site is located within the FFRMS floodplain under the CISA and FVA
approaches, FEMA will compare the ground elevation at the site (using
the U.S. Geological Survey National Map) with the FFRMS flood
elevation.\84\ To identify the FFRMS flood elevation under the CISA and
FVA, FEMA will identify the BFE at the site or the BFE at the nearest
mapped floodplain if the site is outside of the 1% annual chance
floodplain. Any relevant characteristics of the action or site will be
noted at this stage (e.g., service life, criticality, and flood
characteristics).\85\ For the CISA, FEMA will determine the FFRMS flood
elevation by using the NOAA Sea Level Rise Viewer.\86\ FEMA will use
the service life of the action to select the scenario year.\87\ For
non-critical actions, FEMA will use the intermediate scenario, and for
critical actions, FEMA will use the intermediate high scenario.\88\
FEMA will then add the appropriate amount of sea level rise to the BFE
to reach the FFRMS CISA flood elevation. If the site elevation is less
than the CISA flood elevation, then the site is in the FFRMS CISA
floodplain. For the FVA, 2 feet will be added to the BFE for non-
critical actions or 3 feet for critical actions to determine the FFRMS
FVA flood elevation.\89\ If the site elevation is less than the FVA
flood elevation, then the site is in the FFRMS FVA floodplain.\90\ For
the 0.2PFA, FEMA will compare the location of the site with the
horizontal extent of the 0.2 percent annual chance floodplain using the
FEMA Map Service Center or National Flood Hazard Layer.\91\ If the site
is within the floodplain, then it is within the FFRMS 0.2PFA
floodplain.\92\
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\84\ FFRMS Job Aid, pgs. 8-9.
\85\ FFRMS Job Aid, pgs. 8-9 and pgs.13-15.
\86\ Id., pgs. 20-23.
\87\ Id.
\88\ FFRMS Job Aid, pg. 21.
\89\ FFRMS Job Aid, pg. 8.
\90\ Id., pgs. 8-9
\91\ Id., pgs. 30-31.
\92\ Id.
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FEMA published these additional resources in the public docket with
this rulemaking \93\ to further assist the public in understanding the
FFRMS and the approaches utilized, including the availability and
actionability of the CISA data and how FEMA would implement the FFRMS
through application of the FFRMS Job Aid methodology. FEMA will
continue to collaborate across the Federal government to develop tools
to facilitate the implementation of CISA and the FFRMS. The IWG
recently released for comment a beta version of the Federal Flood
Standard Support Tool (FFSST), a novel, interactive, map-based tool
that incorporates new data to help users identify if a Federally funded
project is in the FFRMS floodplain.\94\
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\93\ See https://www.regulations.gov/document/FEMA-2023-0026-0007 and https://www.regulations.gov/document/FEMA-2023-0026-0004.
\94\ 89 FR 25674 (Apr. 11, 2024).
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G. Summary of FEMA's Final Rule and Updated Policy
This final rule implements Executive Order 11988, as amended, the
FFRMS, and the Revised Guidelines, while also updating FEMA's 8-step
process. Consistent with the changes proposed in the NPRM, FEMA is
incorporating a severability clause into part 9; updating definitions
to implement the FFRMS and reflect current policy and practice;
providing the applicable effective date for the changes made in the
final rule and further clarifying the rule's scope; updating how FEMA
determines whether an action is in a floodplain, consistent with the
FFRMS approaches when the action is subject to the FFRMS; and adding an
emphasis on nature-based approaches in the 8-step process consistent
with Executive Order 11988, as amended.
In this final rule, FEMA incorporates edits to reflect commenter
feedback. Specifically, in Sec. 9.7(c)(3), FEMA is adding agencies
from Federal and Indian Tribal governments as potential sources of
information in making the floodplain determination. These changes
better ensure that FEMA will effectively consider relevant and
appropriate data in making the floodplain determination under part 9.
FEMA is also making clarifying edits in Sec. 9.5(a)(3) to clarify that
copies of the legacy regulations will be available on the agency's
website and to Sec. 9.7(c)(3) to clarify that FEMA may consider
information from the entities listed. FEMA is also making minor
technical edits in Sec. 9.7(c)(1)(i)(C) and Sec. 9.11(d)(3)(ii).
FFRMS Policy
FEMA's FFRMS policy is also being finalized with the publication of
this rule and will be effective with the rule's implementation. The
FFRMS policy provides guidance on how FEMA will implement the FFRMS
across FEMA's programs and further incorporate nature-based solutions
into the 8-step process. FEMA is making minor clarifying edits to the
FFRMS policy consistent with commenters' suggestions by further
clarifying the use of the 0.2PFA in coastal areas and making other
technical edits to the document for readability. FEMA is also
clarifying in the FFRMS policy that the agency will leverage the FFRMS
Job Aid when implementing the FFRMS.
III. Discussion of Public Comments and FEMA's Responses
A. Summary of Public Comments
The NPRM public comment period closed on December 1, 2023, and FEMA
received 47 germane comments.\95\ Commenters included non-profit
organizations; individuals; local governments; State governments and
State government organizations; and for-profit entities. The majority
of comments were supportive of FEMA's rule and policy approach to
implementing the FFRMS and other updates to part 9. Commenters focused
on the regulatory impact analysis (RIA) accompanying the rule; the CISA
and the data FEMA would use to determine each of the FFRMS approaches;
FEMA's implementation of the FFRMS; and the 8-step process detailed in
part 9. FEMA describes the specific revisions in the final rule and
addresses commenters' specific concerns below.
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\95\ One commenter provided a duplicate comment posted to both
the rulemaking and FFRMS policy comments.
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B. Comments in Support of the Rule
The majority of commenters were generally supportive of the rule
and accompanying FFRMS policy.\96\ Commenters noted appreciation of
FEMA's rulemaking efforts to enhance the resilience and sustainability
of communities and ecosystems that are vulnerable to flooding. These
commenters stated the FFRMS was a critical policy tool to reduce risks
and promote sound floodplain management and wetlands protection
practices, as well as fiscal responsibility.
---------------------------------------------------------------------------
\96\ 22 commenters expressed direct support for the rule while
19 other commenters expressed only specific recommendations to
improve the rule.
---------------------------------------------------------------------------
Commenters were supportive of the agency's use of the FFRMS
approaches in the rulemaking and accompanying FFRMS policy document. A
commenter noted the incorporation of the CISA, FVA, and 0.2PFA
reflected FEMA's commitment to using diverse and
[[Page 56942]]
adaptive strategies based on the best-available scientific knowledge.
Another commenter supported the floodplain definition revisions,
stating that an expanded floodplain definition would ensure that more
projects were built with resilience in mind when compared to current
projects. A commenter stated FEMA's preferred CISA approach would
result in Federally funded projects that were more resilient to current
and future flooding and ensured a wiser use of taxpayer dollars. The
commenter stated stronger standards were feasible to implement, as many
jurisdictions already have existing stronger building and land-use
standards. Commenters also indicated support for FEMA's emphasis on
using natural systems, ecosystem processes, and nature-based
approaches.
Timing
Comment: Some commenters supporting the rule requested FEMA quickly
finalize and implement the final rule. While requesting FEMA work
quickly to finalize and implement the rule, one commenter noted that
the partial implementation policies in place did not fully implement
FFRMS as they did not extend the horizontal floodplain. This commenter
requested FEMA also integrate FFRMS into the minimum floodplain
management standards for the NFIP. The commenter also stated FEMA
should ensure FFRMS was sufficiently staffed and should develop a
comprehensive plan to track enforcement and any concerns such as
environmental justice to ensure effective implementation of the rule.
FEMA Response: FEMA agrees with the commenters on the importance of
finalizing and implementing the rule and FFRMS policy. FEMA is issuing
this final rule with an effective date of September 9, 2024. As
explained in Sec. 9.5(a)(3), the FFRMS applies only to new actions for
which assistance is made available pursuant to declarations under the
Stafford Act that are commenced on or after the effective date of the
final rule, and new actions for which assistance is made available
pursuant to notices of funding opportunity that publish on or after the
effective date of the final rule.\97\
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\97\ Note that FEMA first partially implemented the FFRMS by
policy with respect to covered projects in existing floodplains in
its Public Assistance and Hazard Mitigation Assistance programs. See
FEMA Policy 104-22-003, ``Partial Implementation of the Federal
Flood Risk Management Standard for Public Assistance (Interim),''
June 3, 2022 found at https://www.fema.gov/sites/default/files/documents/fema_fp-104-22-0003-partial-implemetnation-ffrms-pa-interim.pdf (last accessed Jan. 24, 2024) and FEMA Policy 206-21-
003-0001, ``Partial Implementation of the Federal Flood Risk
Management Standard for Hazard Mitigation Assistance Program,'' Dec.
7, 2022 found at https://www.fema.gov/sites/default/files/documents/fema_policy-fp-206-21-003-0001-implementation-ffrms-hma-program_122022.pdf (last accessed Jan. 24, 2024). Some current FEMA
actions may be subject to these partial implementation policies;
however, those actions would not be subject to this final rule or
policy.
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FEMA declines to accommodate the commenter's request to integrate
the FFRMS into the minimum floodplain management standards for the NFIP
because it is beyond the scope of this rulemaking. The NFIP is a
program through which property owners in participating communities can
purchase Federal flood insurance as a protection against flood
losses.\98\ As a condition of eligibility, a community must adopt and
enforce floodplain management regulations that meet or exceed the NFIP
minimum floodplain management criteria developed by the
Administrator.\99\ Further information regarding FEMA's minimum
floodplain management standards for the NFIP can be found at 44 CFR
part 59 et seq. Because this rule only applies to ``actions subject to
the FFRMS,'' \100\ this rule does not change any FEMA standards
applicable to community or individual participation in any aspect of
the NFIP. In general, changes to 44 CFR part 59 et seq would require a
rulemaking to revise the appropriate sections of the CFR.
---------------------------------------------------------------------------
\98\ 42 U.S.C. 4011(a).
\99\ 42 U.S.C. 4011(a) and (b); 42 U.S.C. 4102; 44 CFR 59.2(b),
59.22(a)(3), 60.1(d).
\100\ See ``Guidelines for Implementing Executive Order 11998,
Floodplain Management, and Executive Order 13690, Establishing a
Federal Flood Risk Management Standard and a Process for Further
Soliciting and Considering Stakeholder Input,'' 80 FR 64008 (Oct.
22, 2015) (providing notice of the availability of the Revised
Guidelines in the docket for the rulemaking at https://www.regulations.gov/document/FEMA-2015-0006-0358 (main content) and
https://www.regulations.gov/document/FEMA-2015-0006-0372
(appendices)) also available at https://www.fema.gov/sites/default/files/documents/fema_implementing-guidelines-EO11988-13690_10082015.pdf (last accessed Mar. 11, 2024).
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As an illustrative example, if an NFIP-participating community owns
a structure in a floodplain that has been substantially damaged and the
community decides to repair it using community funds, funding from a
flood insurance payment, or other funding that is not FEMA grant
funding, the community's floodplain management regulations, not the
FFRMS, would apply to the repair project. However, if that same
structure was substantially damaged by a disaster event, and the
community applied for assistance under a FEMA grant program like the
Public Assistance program, the FFRMS would apply to that repair
project.
FEMA agrees with the commenter that it is important to adequately
staff for FFRMS implementation. FEMA is accordingly ensuring that
sufficient staff at headquarters and regional offices are appropriately
trained to provide technical assistance. FEMA currently leverages the
8-step process detailed in 44 CFR part 9 as the mechanism to implement
Executive Order 11988. Step 8 of the process found at 44 CFR 9.6(b)
requires FEMA to review the implementation and post-implementation
phases of the proposed action to ensure that the requirements stated in
Sec. 9.11 are fully implemented. Under this provision, oversight
responsibility is integrated into existing processes associated with
FEMA's grant management requirements. FEMA is not making changes to
these requirements in the final rule and will continue to use the
current process to ensure compliance with the FFRMS and Executive Order
11988, as amended. 2 CFR 200.339 also allows FEMA to take action to
remedy a recipient's noncompliance with federal requirements, including
those required by 44 CFR part 9, such as imposing new conditions on the
award or deobligating funding for the award if a recipient does not
adhere to the requirements set forth during the part 9 review process.
C. Comments in General Opposition to the Rule
Four commenters expressed opposition to the rule overall. Those
commenters raised concerns about the complexity of the FFRMS
approaches, uncertainty about the CISA standard, and the application of
FFRMS to specific types of FEMA actions. The commenters stated concerns
with the potential increased costs associated with implementing FFRMS
and with FEMA's economic impact analysis accompanying the rule. The
commenters also stated concerns with implementing the FFRMS given
conflicting Federal, State, local, and other requirements. Commenters
stated the FFRMS was a ``one-size-fits-all'' approach that lacked the
flexibility to address regional and local needs. Commenters stated the
use of the CISA introduced uncertainty into the regulations contrary to
the fundamental principles outlined in Executive Orders 12866 and
13563. Commenters also stated FEMA's analysis of the costs and benefits
associated with the rulemaking did not adequately quantify the costs
and benefits of several components of the risk reduction strategies in
the rule. Commenters raised questions regarding FEMA's statutory
authority to implement the rule. One commenter
[[Page 56943]]
stated Congress should define the floodplain. This commenter raised
similar concerns regarding the use of the CISA and lack of data sources
that map the FFRMS floodplain. FEMA responds to some of the general
comments in opposition to the rule in the comment summaries and
responses immediately below and responds in more detail to the
remainder of the comments in the following sections of the preamble.
Comment: One commenter requested FEMA extend the comment deadline
associated with the rule for an additional 60 days. The commenter
requested an extension of the comment period given the complexity of
the rule and policy and to implement extensive public outreach.
FEMA Response: FEMA received 48 comments to the public docket
associated with this rulemaking and no other requests to extend the
comment period were received. The 60-day comment period provided is
consistent with 44 CFR 1.3(b) and Executive Orders 12866 and 13563.
This timeframe provided a reasonable opportunity for public comment and
is particularly appropriate given FEMA's prior engagement on this
topic. FEMA completed extensive outreach in 2015 as part of the
development and publication of the Revised Guidelines, and also sought
public input in connection with the agency's prior NPRM in 2016.\101\
Additional outreach will be completed as part of the rule's
implementation as FEMA will distribute additional information to SLTT
partners and the public explaining again what the FFRMS is and how the
agency will further implement the Executive Orders. FEMA's FFRMS policy
will also be reassessed on a four-year cycle to ensure the approach
continues to meet the goals of Executive Order 11988, as amended.
During the four-year review process, FEMA's FFRMS policy will be
reviewed, revised, extended, and/or rescinded as appropriate.
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\101\ Established by the 2013 Climate Action Plan, the Climate
Task Force met with stakeholders from State, local, Tribal, and
territorial governments; private businesses; trade associations;
academic organizations; civil society; and other stakeholders to
develop and provide recommendations in November 2014. President's
State, Local, and Tribal Leaders Task Force on Climate Preparedness
and Resilience, Recommendations to the President, (2014), available
at https://obamawhitehouse.archives.gov/sites/default/files/docs/task_force_report_0.pdf at 7 (last accessed Jan. 24, 2024). FEMA,
acting on behalf of the MitFLG and consistent with Executive Order
13690, published a draft of the Revised Guidelines for notice and
comment on February 5, 2015 at 80 FR 6530. During the public comment
period, over 25 meetings were held across the country with State,
local, and Tribal officials and interested stakeholders to discuss
the Revised Guidelines. There were also 9 public listening sessions
across the country that were attended by over 700 participants from
State, local, and Tribal governments, and other stakeholder
organizations to discuss the Revised Guidelines. The final Revised
Guidelines were published on October 22, 2015 at 80 FR 64008. FEMA
published a notice of proposed rulemaking to implement FFRMS
initially in 2016 at 81 FR 57402 (Aug. 22, 2016) along with a notice
of availability and request for comment on a FFRMS policy at 81 FR
56558 (Aug. 22, 2016) and a notice of availability regarding a draft
report at 81 FR 64403 (Sept. 20, 2016).
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FEMA does not believe additional engagement is needed to finalize
this rule. All but a few of commenters expressed support for the rule
and FEMA's FFRMS policy and many requested swift implementation,
consistent with the need to protect federal dollars and communities
from increasing flood risk.
Comment: One commenter stated the rulemaking was premature in the
absence of a clearly defined process for implementing the CISA and
urged FEMA to withdraw the rule from consideration. The commenter
expressed concern that FEMA will take a haphazard approach--completing
each analysis of the extent and elevation of the CISA floodplain on a
case-by-case basis and doing so using data that may not be complete or
is not be widely known or available to the public. The commenter stated
that in the end, neither the process nor the outcome will be
predictable or replicable.
FEMA Response: FEMA disagrees. This rulemaking is not premature,
and FEMA provided information in and accompanying the NPRM explaining
how the CISA and the FFRMS will be implemented. Each analysis will be
completed on a case-by-case basis consistent with the current 8-step
process, which has been in place for over four decades, to determine
the floodplain, but the data used to make the analysis is publicly
available and replicable using the FFRMS CISA State of the Science
Report, the FFRMS Job Aid, and FEMA's FFRMS policy. As explained above,
the FFRMS CISA State of the Science Report identifies the latest sea
level rise projections from the National Climate Assessment as
available and actionable data and the appropriate sea level rise
estimates can be used to approximate future 1 percent annual chance
flood levels. These estimates can simply be added to the current 1
percent annual chance flood elevation to approximate the future 1
percent annual chance flood level, in low-lying coastal shorelines on
the Atlantic and Gulf Coasts not subject to runup or overtopping. The
FFRMS Job Aid \102\ provides the methodology FEMA will use to determine
the floodplain and elevation under the CISA where data is actionable
and available (namely in low-lying coastal shorelines on the Atlantic
and Gulf Coasts consistent with the FFRMS CISA State of the Science
Report). FEMA's FFRMS policy further explains that the CISA is used
where actionable and available and provides alternatives where such
data is not actionable and/or available. The CISA analysis can be
completed using these publicly available materials for areas with
actionable and available data. FEMA anticipates actionable and
available data will increase over time and the interagency tools
provided will be updated to reflect the new data.
---------------------------------------------------------------------------
\102\ Available at https://www.fema.gov/sites/default/files/documents/fema_ffrms-floodplain-determination-job-aid.pdf (last
accessed Mar. 12, 2024).
---------------------------------------------------------------------------
Comments: Two commenters requested FEMA complete additional
analyses before finalizing the rule. Both commenters referenced other
flood-related regulatory and policy actions, including the Technical
Mapping Advisory Council (TMAC)'s proposal to increase the regulatory
floodplain and increase the NFIP floodplain management standards for
land management and use; Risk Rating 2.0 for flood insurance premiums;
and USACE's proposed levee safety updates as well as risk informed
decision making.
One commenter requested the rule be deferred until FEMA completed a
cumulative impacts assessment and considered associated actions to
mitigate the impacts of the actions above on communities participating
in the NFIP, mapping and accreditation, low to moderate income
families, and disadvantaged communities. The commenter further
requested FEMA withdraw the rule until a regulatory analysis applying
sound cost-benefit analysis principles and a comprehensive socio-
economic impact analyses to address the full and intended scope of
FFRMS were completed. The commenter stated the regulatory impact
analysis should address cumulative impacts and the need for mitigation
of impacts to community property values, tax bases, the distribution of
real income, as well as the impacts on affordable housing and low to
moderate income families and disadvantaged communities.
The other commenter stated that different flood regulations and
policies may overlap with or duplicate each other and potentially lead
to redundancy, confusion, and additional costs. The commenter requested
FEMA conduct a more thorough quantitative cost-benefit analysis,
considering the
[[Page 56944]]
cumulative effects of recent floodplain governing rules to make well
informed decisions regarding appropriate risk reduction strategies and
ensure a thorough understanding of the overall impact of the rule's
implementation. The commenter requested FEMA conduct a comprehensive
assessment of cumulative impacts to ensure a more informed and
coordinated approach and requested that FEMA provide additional
documentation on how FFRMS would impact other Federal agencies'
programs, such as USACE's civil works projects and whether FEMA's FFRMS
policy would supersede other Federal agencies' rules and regulations.
The commenter stated FEMA relied on a subjective assessment of the
rule's costs and benefits. The commenter asked FEMA to closely
coordinate with other agencies that typically co-regulate projects,
including USACE with water resources projects.
The commenter also stated that the FFRMS could lead to further
deterioration of key infrastructure, where meeting the new, higher
standards is not technically or financially feasible, resulting in
communities leaving the infrastructure to deteriorate in place and not
serve the public need. The commenter stated that these types of costs
should be considered in the regulatory analyses.
FEMA Response: FEMA disagrees this rule should be deferred. While
FEMA understands the commenters' interest in the policy activities
mentioned, the agency does not believe those actions are relevant to
this rulemaking or require additional analysis to finalize this rule.
The commenters reference a recommendation made by the TMAC in a recent
annual report \103\ that FEMA expand the NFIP regulatory floodplain as
defined in 44 CFR 59.1 to which the NFIP's minimum floodplain
management criteria set forth in 44 CFR 60.3 applies, and the
commenters suggest that FEMA must delay this rulemaking until it has
analyzed the effects of that recommendation. That is not necessary
because FEMA has not implemented the TMAC recommendation and therefore
it has no current effect on communities. The TMAC is a Federal advisory
committee established to review and make recommendations to FEMA on
matters related to the national flood mapping program authorized under
the Biggert-Waters Flood Insurance Reform Act of 2012.\104\ The
national flood mapping program requires FEMA to review, update, and
maintain NFIP rate maps.\105\ It is outside the scope of this rule.
---------------------------------------------------------------------------
\103\ TMAC 2023 Interim Report, available at https://www.fema.gov/sites/default/files/documents/fema_rm-tmac-2023-interim-report-30OCT2023.pdf (last accessed Mar. 28, 2024).
\104\ 42 U.S.C. 4101a.
\105\ 42 U.S.C. 4101b.
---------------------------------------------------------------------------
The commenters also refer to the NFIP's pricing approach \106\ for
NFIP policyholders as a new ``flood regulation'' that requires analysis
prior to finalizing this rulemaking. However, this rulemaking does not
impact the NFIP's site-specific actions, such as how FEMA rates the
premium for a flood insurance policy. Further, the population of NFIP
policyholders is much larger than the number of FEMA grant recipients
who will be impacted by this rule.
---------------------------------------------------------------------------
\106\ Also known as Risk Rating 2.0, Equity in Action. See
https://www.fema.gov/flood-insurance/risk-rating (last accessed Mar.
18, 2024).
---------------------------------------------------------------------------
One commenter states FEMA needs to account for how the rule will
impact mapping and accreditation under the NFIP; however, the rule does
not appreciably impact those areas of the NFIP. This rule and the
accompanying policy implement the FFRMS for actions where FEMA funds
are used for new construction, substantial improvement or repairs to
address substantial damage, and requires that nature-based solutions
and natural features be considered and implemented where possible to
all actions that are subject to Step 3 of the 8-step decision-making
process. Nature-based solutions and natural features must be considered
as an alternative action in Step 3. Where it is not possible to use
natural features and nature-based solutions as an alternative on their
own, they would be considered in conjunction with the proposed action
as a minimization measure in Step 5. Neither FEMA's flood mapping
program nor its accreditation of levees under the NFIP are actions
subject to the FFRMS and, to the extent that any programmatic or policy
change to either of those areas are required to undergo the 8-step
process under 44 CFR part 9, it is unlikely that a consideration of
nature-based solutions will result in changes with demonstrable
impacts. FEMA cannot address the other actions referenced, such as the
USACE's civil works projects and levee safety updates, as these involve
other Federal agencies, and questions regarding those actions are best
addressed by those agencies directly.
FEMA believes that the commenter's concerns about this rule's
economic impacts is inconsistent with this rule's relatively limited
applicability. FEMA defines an ``action subject to the FFRMS'' as ``any
action where FEMA funds are used for new construction, substantial
improvement, or to address substantial damage to a structure or
facility,'' consistent with Executive Order 11988, as amended, and the
Revised Guidelines. The FFRMS applies to grants for projects funding
the new construction, substantial improvement, or repair of substantial
damage under FEMA programs such as the IA, PA, and HMA programs, and
grants processed by FEMA's Grants Programs Directorate (GPD) (involving
grants for preparedness activities). This rule does not regulate
privately funded activity in the floodplain. As such, the
implementation of the FFRMS will have negligible impacts on community
property values, tax bases, and the distribution of real income.
Additionally, FEMA expects the impacts on affordable housing for low to
moderate income households and disadvantaged communities to be minimal
since most actions subject to FFRMS requirements are non-residential.
FEMA only funds residential construction in the IA and HMA programs;
FEMA funds 153 residential IA projects and 268 HMA residential projects
per year on average. The majority of the costs associated with FFRMS
requirements will be covered by FEMA funding.
Comment: A commenter stated the FFRMS policy and rule were one-
sided, as they limited how people could use and live in flood-prone
areas without a clear goal to support economic growth or sensible
development within reasonable limits. The commenter stated Congress
likely would not endorse a flood risk strategy that did not consider
using flood-prone areas optimally for the country's benefit. The
commenter stated the rule's benefits were unclear given the emphasis on
constraints and a lack of consideration for economic development as
part of resilience. The commenter recommended that FEMA adjust the
policy to include efficient and smart use of flood-prone areas while
acknowledging the limitations on development.
FEMA Response: The revisions to part 9 are consistent with FEMA's
long-standing requirement as part of implementation of Executive Order
11988, as amended, to only perform or fund actions within or affecting
floodplains and wetlands if those actions are the only practicable
alternative. FEMA's regulations provide for consideration of the need
for economic development and community resilience, while also
bolstering the resilience of communities and Federal
[[Page 56945]]
assets against the impacts of flooding. For instance, through the 8-
step process, FEMA considers alternative locations, alternative
actions, natural features, nature-based approaches, and the no action
alternative under the practicability analysis. The definition of
``practicable'' makes clear that practicability depends on the
situation and includes consideration of all pertinent factors, such as
natural environment, social concerns, economic aspects, legal
constraints, and agency authorities. In addition, if there is no
practicable alternative, FEMA will perform or fund the action in the
floodplain or wetland and will minimize any adverse impacts when doing
so. Under Sec. 9.9 as well, in determining the practicability of the
alternatives, FEMA considers economic aspects.
D. FEMA's Authority for Part 9 and Revisions
Two commenters wrote comments concurring with FEMA's statutory and
other authority for the rulemaking.
Comments: Both commenters stated the rule was a valid use of FEMA's
regulatory authority, citing to the NFIA, as amended by the Flood
Disaster Protection Act (42 U.S.C. 4001 et seq.), the Stafford Act (42
U.S.C. 5121 et seq.), and the NEPA (42 U.S.C. 4321 et seq.). One
commenter noted the Congressional intent in the Stafford Act for the
Federal Government to develop land use and construction regulations to
help State and local governments mitigate risk and reduce losses and
FEMA's broad discretion to define ``safe land use and construction
practices'' as a condition of Stafford Act funding for both public and
private structures.\107\ The commenter stated section 101 of NEPA
required FEMA to use all practicable means to ensure Federal plans,
programs, and resources ``(1) fulfill the responsibilities of each
generation as trustee of the environment for succeeding generations;
(2) assure for all Americans safe, healthful, productive, and
esthetically and culturally pleasing surroundings; [and] (3) attain the
widest range of beneficial uses of the environment without degradation,
risk to health or safety, or other undesirable and unintended
consequences'' among other priorities.\108\ The commenter stated the
FFRMS reflects a tradition of executive action to enforce reasonable
floodplain management and wetland protection. Another commenter noted
the NFIA and Flood Disaster Protection Act require FEMA to establish
land use criteria for floodplain management \109\ and that NEPA
requires Federal agencies to evaluate the environmental and related
social and economic effects of their proposed actions, which includes
the evaluation of the impacts of proposed actions in the
floodplains.\110\ Further, the commenter stated the Stafford Act
directed FEMA to encourage ``hazard mitigation measures to reduce
losses from disasters, including development of land use and
construction regulations.'' \111\ The commenter stated FEMA's
regulations were consistent with these legislative directives.
---------------------------------------------------------------------------
\107\ 42 U.S.C. 5165a.
\108\ 42 U.S.C. 4331(b).
\109\ 42 U.S.C. 4102, 42 U.S.C. 4104c.
\110\ 42 U.S.C. 4332(2)(C).
\111\ 42 U.S.C. 5121(b)(5).
---------------------------------------------------------------------------
FEMA Response: FEMA agrees with the commenter that the agency has
statutory authority to implement FFRMS. Please refer to section II.B
for a description of FEMA's statutory authority to implement grant
programs and to require its grant recipients to carry out repairs or
construction in accordance with specific standards.
Three commenters raised concerns regarding FEMA's legal authority
to amend part 9 and implement FFRMS.
Comment: One commenter stated Congress should establish the
definition of floodplains. The commenter acknowledged defining the
geographic scope of a floodplain was not an easy task, but stated the
implications on landowners and others made it a job best left for
Congress. The commenter stated that Congress drafted and debated
language over the last twenty plus years on the issue and stated that
Congress has had the opportunity to revisit and refine Federal
floodplain policies as part of NFIP regular reauthorization process.
The commenter stated it was bad public policy to delegate defining the
limits of Federal authority to the agencies, citing to challenges other
agencies have had defining ``waters of the United States'' and
reiterating the need for Congressional action.
FEMA Response: This comment appears to confuse the definition of
floodplain under the NFIP with the definition of floodplain that is
being altered with this rulemaking, and, as such, makes incorrect
statements and assumptions about the role Congress has played or should
play. This rulemaking is not altering the definition of floodplain
under the NFIP. The NFIP is a program through which property owners in
participating communities can purchase Federal flood insurance as a
protection against flood losses.\112\ As a condition of eligibility, a
community must adopt and enforce floodplain management regulations that
meet or exceed the NFIP minimum floodplain management criteria
developed by the Administrator.\113\ The floodplain and other
definitions governing the NFIP can be found at 44 CFR 59.1. This
rulemaking is updating the definition of floodplain in 44 CFR part 9 as
applied to actions subject to the FFRMS, defined as actions where FEMA
funds are used for new construction, substantial improvement, or
repairs to address substantial damage to structures and
facilities.\114\ As set forth, in section II.B, Congress has authorized
FEMA to implement grant programs and to require its grant recipients to
carry out repairs or construction in accordance with specific
standards.
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\112\ 42 U.S.C. 4011(a).
\113\ 42 U.S.C. 4011(a) and (b); 42 U.S.C. 4102; 44 CFR 59.2(b),
59.22(a)(3), 60.1(d).
\114\ See ``Guidelines for Implementing Executive Order 11998,
Floodplain Management, and Executive Order 13690, Establishing a
Federal Flood Risk Management Standard and a Process for Further
Soliciting and Considering Stakeholder Input,'' 80 FR 64008 (Oct.
22, 2015) (providing notice of the availability of the Revised
Guidelines in the docket for the rulemaking at https://www.regulations.gov/document/FEMA-2015-0006-0358 (main content) and
https://www.regulations.gov/document/FEMA-2015-0006-0372
(appendices)) also available at https://www.fema.gov/sites/default/files/documents/fema_implementing-guidelines-EO11988-13690_10082015.pdf (last accessed Mar. 11, 2024).
---------------------------------------------------------------------------
Comment: Two commenters requested FEMA cite the specific and clear
Congressional authority for each objective and mandate of FFRMS. Both
commenters noted the President may have the authority to impose
mandates on Federal projects as cost-saving measures, but regulation of
private and non-Federal activities within the floodplain was limited to
those jurisdictions where local communities have imposed upon
themselves the burden of floodplain regulation as a condition of
participation in the NFIP. The commenters stated that applying the
FFRMS to private and non-Federal government entities under other
regulatory programs was outside FEMA's statutory authority.
FEMA Response: Please refer to section II.B for a description of
FEMA's statutory authority to implement grant programs and to require
its grant recipients to carry out repairs or construction in accordance
with specific standards. Contrary to the commenter's assertions, this
rule applies the FFRMS to FEMA funded projects for new construction,
substantial improvement, and repairs to address substantial damage. It
does not regulate privately funded activity in the floodplain, it does
not alter the definition of floodplain under the NFIP, and it does not
apply
[[Page 56946]]
the FFRMS to any programs other than FEMA's grant programs.
Comment: One of the commenters stated that FEMA was acting without
clear statutory authority as implementing the FFRMS fell within the
scope of a major question because of the standard's aggregate economic
impacts over time. Two commenters recommended FEMA remove any
application of FFRMS to private and non-Federal activities covered by
permitting, loan, or grant-in-aid programs administered by Federal
agencies except where clear statutory authority has been granted and
also sever any and all objectives related to regulating floodplain
activities to protect wetlands. The commenters stated Federal authority
over wetlands was limited by the Clean Water Act and recent Supreme
Court rulings, including Sackett v. EPA.\115\
---------------------------------------------------------------------------
\115\ Sackett v. EPA, 598 U.S. 651 (2023).
---------------------------------------------------------------------------
FEMA Response: FEMA disagrees the aggregate economic impacts over
time associated with this rulemaking are a matter of such ``deep
economic and political significance'' as to constitute a ``major
question,'' as described by the Supreme Court in West Virginia v.
EPA.\116\ While FEMA expects that this rule would carry important
benefits and would ultimately save significant taxpayer dollars, this
rule is not akin to the rule in West Virginia, where the agency's ``own
modeling concluded that the rule would entail billions of dollars in
compliance costs (to be paid in the form of higher energy prices),
require the retirement of dozens of coal-fired plants, and eliminate
tens of thousands of jobs across various sectors.'' \117\ This
rulemaking requires FEMA grant recipients to build a subset of the
construction projects that FEMA funds to a higher standard in an
expanded floodplain. There is an increase in the costs associated with
this more resilient building standard, but that increase is paid
primarily by FEMA and is ultimately a fraction of what grant recipients
might already spend using Federal funds to accomplish such
construction.
---------------------------------------------------------------------------
\116\ 142 S. Ct. 2587 (2022).
\117\ Id. at 2604.
---------------------------------------------------------------------------
Even if the major questions doctrine did apply, there is clear
statutory authority and longstanding precedent for the rule. FEMA has
authority to require application of the FFRMS as a condition of funding
in its grant programs based on the grant programs' authorizing
statutes. Congress granted FEMA the authority to provide Federal
assistance through multiple grant programs under the Robert T. Stafford
Disaster Relief and Emergency Assistance Act (Stafford Act),\118\ the
NFIA,\119\ the Homeland Security Act of 2002,\120\ the Federal Fire
Prevention and Control Act of 1974,\121\ the Earthquake Hazards
Reduction Act of 1977,\122\ and various other appropriations acts.
Under each of these authorities, FEMA may set grant eligibility
criteria consistent with the respective purposes of such programs and
FEMA's mission, including to protect Federal investments from the risks
of further damage.\123\ Under the Stafford Act and the NFIA, which
authorize the programs that fund the majority of the actions subject to
the FFRMS, FEMA has general rulemaking authority.\124\ Further, FEMA
has explicit authority under the Stafford Act to set the minimum
standards for safe land use and construction standards required in the
repair or construction of private and public facilities.\125\ Further,
in the time since Executive Order 11988 was first issued in 1977 and
FEMA issued its implementing regulations at 44 CFR part 9 in 1979 and
1980, Congress has amended FEMA's governing authorities multiple times
without overriding part 9.\126\ Consistent with the approach that FEMA
has taken for decades, this rule revises part 9 pursuant to FEMA's
statutory authorities and in line with Executive Order 11988, as
amended.
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\118\ 42 U.S.C. 5121 et seq.
\119\ 42 U.S.C. 4001 et seq.
\120\ 6 U.S.C. 101 et seq; see also 6 U.S.C. 314(a)(12), which
specifically charges the Administrator with supervising various
grant programs authorized under the HSA. Such grant programs have
long been governed by floodplain management regulations at 44 CFR
part 9, see, e.g., 44 FR 76510 (Dec. 27, 1979), 45 FR 59520 (Sept.
9, 1980). See also, e.g., 2 CFR 200.300(a) (directing Federal
awarding agencies to manage and administer Federal awards in a
manner so as to ensure that Federal funding is expended and
associated programs are implemented in full accordance with the U.S.
Constitution, Federal Law, and public policy requirements including,
but not limited to, those protecting public welfare and the
environment; and requiring the Federal awarding agency to
communicate to the non-Federal entity all relevant public policy
requirements, and incorporate them either directly or by reference
in the terms and conditions of the Federal award.).
\121\ 15 U.S.C. 2229 and 2229a.
\122\ 42 U.S.C. 7701 et seq.
\123\ See, e.g., 6 U.S.C. 609 (granting FEMA approval authority
over grant funds for construction awards under its Homeland Security
Grant Program, State Homeland Security Grant Program, Urban Area
Security Initiative, Operation Stonegarden, Tribal Homeland Security
Grant Program, and Nonprofit Security Grant Program); 6 U.S.C.
1182(d)(1) (granting DHS the authority to determine the grant
requirements for the Intercity Bus Security Grant Program); 6 U.S.C.
1163(c)(1) (granting FEMA the authority to determine the grant
requirements for the Intercity Passenger Rail grant program); 46
U.S.C. 70101 (granting DHS approval authority over grant funds for
construction awards under the Port Security Grant Program); 6 U.S.C.
1135(c)(1) (granting DHS the authority to determine the grant
requirements for the Transit Security Grant Program); 33 U.S.C.
467f-2(c)(2)(A) (granting FEMA the authority to set the minimum
eligibility requirements for the Rehabilitation of High Hazard Dam
Program).
\124\ See 42 U.S.C. 5164; 42 U.S.C. 4128(a) and (b).
\125\ 42 U.S.C. 5165a(a)(1)-(2).
\126\ See, e.g., Disaster Mitigation Act of 2000, Public Law
106-390, 114 Stat. 1552 (Oct. 30, 2000); Post-Katrina Emergency
Management Reform Act of 2006, Public Law 109-295, 120 Stat. 1452
(Oct. 4, 2006); Sandy Recovery Improvement Act of 2013; Public Law
113-2, 127 Stat. 47 (Jan. 29, 2013); Disaster Recovery Reform Act of
2018, Public Law 115-254, 132 Stat. 3448 (Oct. 5, 2018).
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Finally, the comments related to wetlands and the Supreme Court's
decision in Sackett v. EPA are not germane to this rulemaking. FEMA's
proposed changes to the definition of wetlands within the regulation
was limited to reorganizing the placement of examples within the
definition and removing an outdated resource. FEMA's proposed changes
do not change how the agency makes wetland determinations.
E. Definitions
FEMA received over 40 specific comments on the proposed rule's
definitions in Sec. 9.4. Commenters were generally supportive of the
proposed revisions but sought clarification or offered suggestions to
enhance the definitions provided in the proposed rule. FEMA has
carefully reviewed the commenters' suggestions and is not revising the
NPRM definitions in this final rule but is providing multiple
clarifications below.
1. General Comments on Definitions
Comments: Commenters requested additional clarity regarding
definitions and additional engagement on definitions generally. A
commenter requested FEMA provide clear definitions and describe
abbreviations before they are used in the rulemaking, policy, and any
additional guidance or resources provided. The commenter provided an
example of the term ``AC floodplain'' used in a graphic without
definition. Another commenter requested FEMA engage stakeholders from a
range of relevant backgrounds in the review process to gather varied
perspectives and ensure that definitions are clear and universally
understood.
FEMA Response: FEMA will distribute additional resources to the
public and SLTT partners after the rule's publication to ensure that
stakeholders understand what the FFRMS is and how the agency will
implement the revised part 9. These resources will include additional
examples to help applicants better understand the FFRMS as they apply
for FEMA programs. FEMA appreciates the
[[Page 56947]]
commenter's concern and has updated Figure 1 in the FFRMS policy to
clarify ``AC floodplain'' means ``annual chance floodplain.''
FEMA engaged stakeholders as part of the development and
publication of the Revised Guidelines, which contain most of the
definitions FEMA uses in this rulemaking. Stakeholders also provided
specific feedback on the definitions in Sec. 9.4 as part of this
rulemaking effort and FEMA addresses their concerns in this final rule.
2. 0.2PFA
Comment: A commenter expressed support for the definition of the
0.2 percent annual chance flood elevation (0.2PFA), agreeing with the
use of the terminology similar to annual exceedance probability for
defining flow, floodplains, and water surface elevation in the
floodplain.
FEMA Response: FEMA appreciates the commenter's consideration of
the definition.
3. Agency
Comment: One commenter requested clarification on how the term
``agency'' was defined under part 9.
FEMA Response: FEMA defines ``agency'' in Sec. 9.4 as ``the
Federal Emergency Management Agency (FEMA).'' FEMA is not changing the
definition of ``agency'' in this final rule.
4. Critical Action
Comments: Five commenters asked FEMA to further clarify the
definition of ``critical action,'' stating the definition was too vague
and left too much room for interpretation. Commenters asked for a list
of examples of critical actions to support the definition in Sec. 9.4
and/or sufficient information to distinguish between critical and non-
critical actions. One commenter asked FEMA to provide examples related
to the transportation sector and recommended roadways, bridges, and
culverts not be considered critical actions. One commenter requested a
process for local representatives to provide input on what constitutes
critical action/critical facilities.
FEMA Response: FEMA's definition of ``critical action'' is
consistent with Executive Order 11988, as amended, through the 1978
Guidelines and further clarified in the Revised Guidelines. FEMA notes
the term ``critical action'' is not new but was developed and
implemented initially with Executive Order 11988 in 1977. The Revised
Guidelines provide further details on what constitutes a critical
action. FEMA will leverage the information in the Revised Guidelines
when providing additional guidance to stakeholders. The determination
of whether an action to create or extend the useful life of a structure
or a facility is a critical action is generally made on a case-by-case
basis consistent with the information found in the Revised Guidelines.
Local representatives have input on whether a particular action is a
``critical action'' as part of the agency's 8-step process.
5. Federal Action
Comment: Two commenters sought clarification on the term ``Federal
action.'' Commenters sought clarification on what is a ``Federal
action'' subject to the FFRMS and stated confusion and inconsistency
could result among different Federal agencies and programs implementing
the FFRMS. One commenter asked for additional clarification on whether
specific FEMA programs were subject to the FFRMS. That commenter also
sought clarification on how the FFRMS would interact with other Federal
laws and regulations that govern floodplain management, such as the
NFIP, NEPA, and the Endangered Species Act (ESA).
FEMA Response: In this rulemaking, FEMA revises Sec. 9.4 to define
``action subject to the FFRMS'' as ``any action where FEMA funds are
used for new construction, substantial improvement, or to address
substantial damage to a structure or facility.'' As explained above,
the requirements of this rule apply to grants for projects funding the
new construction, substantial improvement, or repair of substantial
damage under FEMA programs such as IA, PA, and HMA programs, and grants
processed by FEMA's GPD.
Part 9 only applies to FEMA actions. Other Federal agencies will
implement FFRMS through their own regulations and/or policies. To
ensure consistency, all Federal agencies will utilize the Revised
Guidelines in their own FFRMS implementation. Per 44 CFR 9.11(d)(6), no
action may be taken if it is inconsistent with the NFIP or any more
restrictive Federal, State, or local floodplain management standards.
FEMA funding actions are also evaluated pursuant to the NEPA, ESA,
and other environmental and historic preservation requirements. The
Federal action will not be approved unless it meets all applicable
environmental and historic preservation requirements.
6. Floodplain
Comments: A commenter requested FEMA coordinate with the agency's
TMAC to ensure the new rule's definition of ``floodplain'' in Sec. 9.4
accounts for potential changes in the definition and mapping of
floodplains recommended by the TMAC. Another commenter asked how the
floodplain would be defined in the FFRMS and if the floodway would be
considered a regulatory floodplain. The commenter stated it was unclear
how the expanded horizontal FFRMS floodplain would impact future State
Department of Transportations' maintenance work in coordination with
the Federal Highway Administration (FHWA).
FEMA Response: FEMA appreciates the commenter's concerns. The
purpose of TMAC is to provide analysis under the NFIA. The requirements
of Executive Order 11988, as amended, are distinct from TMAC
recommendations and thus FEMA disagrees with the commenter that
coordination with TMAC is required to finalize this rule. As explained
above, the TMAC is a Federal advisory committee established to review
and make recommendations to FEMA on matters related to the national
flood mapping program authorized under the Biggert-Waters Flood
Insurance Reform Act of 2012.\127\ The national flood mapping program
requires FEMA to review, update, and maintain NFIP rate maps.\128\
While the framework FEMA uses in part 9 is distinct from mapping
recommendations for flood prone areas TMAC made in their recent annual
report, FEMA believes that the flexibility outlined in 44 CFR 9.7 and
the practice of using the best available information will allow the
application of part 9 to adjust to any change made in the mapping
process should FEMA adopt any of the TMAC recommendations.
---------------------------------------------------------------------------
\127\ 42 U.S.C. 4101a.
\128\ 42 U.S.C. 4101b.
---------------------------------------------------------------------------
As explained in the NPRM in 44 CFR 9.4, FEMA defines the ``Federal
Flood Risk Management Standard Floodplain'' as the floodplain
established using one of the approaches described in 44 CFR 9.7(c). The
floodway and the regulatory floodway are also defined in 44 CFR 9.4 and
are within the floodplain for purposes of part 9. The requirements of
this rule will apply to actions funding the new construction,
substantial improvement, or repair of substantial damage under FEMA
programs such as IA, PA, and HMA programs, and grants processed by
FEMA's GPD. Roads that are under the jurisdiction of another Federal
agency, such as those under the FHWA, are subject to that agency's
requirements as they generally are ineligible for funding under FEMA's
grant assistance programs.
[[Page 56948]]
7. Nature-Based Approaches
While some commenters expressed support for the definition of
``nature-based approaches'' in the rule, other commenters requested
specific revisions.
Comment: One commenter stated the definition of ``nature-based
approaches'' failed to take into account a design intent to protect or
restore natural processes; and did not include reference to hybrid
gray/green solutions that might be required for restoring habitat,
attenuating floods, and keeping communities safe. The commenter
suggested a definition closer to the ``nature-based solutions''
definition published on FEMA's website. The commenter requested FEMA
work with other Federal agencies to agree on common definitions for key
terminology. Further, the commenter recommended that FEMA remove
language stating that nature-based approaches ``generally, but not
always, must be maintained in order to reliably provide the intended
level of service,'' because maintenance requirements are highly
variable and are also generally necessary to maintain grey
infrastructure. The commenter stated that ``nature-based solutions
specifically aim to work with nature (as opposed to grey infrastructure
solutions that often are designed to control or work against nature
processes) and therefore can be less susceptible to catastrophic
failure or repeated maintenance and can require lower maintenance costs
overall.'' This commenter also requested FEMA include ``green
infrastructure'' when describing the definition. The commenter
recommended FEMA include a broader range of ecosystem-based activities
in the description of natural and nature-based actions, especially
those more appropriate for larger or more rural floodplains. The
commenter provided specific scenarios of nature-based approaches.
FEMA Response: FEMA appreciates the commenter's concerns and
believes the definition as written is appropriate. The definition is
consistent with the glossary definition in the Revised Guidelines. The
Revised Guidelines provide broad guidance in implementing Executive
Order 11988, as amended and ``offer a common point of reference so that
each agency can use or amend their procedures as appropriate.'' \129\
Consistency with the Revised Guidelines definition helps ensure more
consistent implementation of nature-based approaches across the Federal
government and meets the commenter's request for FEMA to utilize common
terminology with other Federal agencies. Changes such as those proposed
by the commenter would increase the potential for inconsistency and
stakeholder confusion working on projects involving multiple Federal
agencies.
---------------------------------------------------------------------------
\129\ Revised Guidelines at pg. 13.
---------------------------------------------------------------------------
FEMA notes that the Revised Guidelines state that nature-based
approaches can restore natural processes, and the agency does not
believe the definition excludes either protecting or restoring natural
processes. For purposes of part 9, nature-based solutions are specific
to floodplains and wetlands, and the commenter's references to nature-
based solutions on the agency's website reflects the full range of
natural hazards FEMA programs may mitigate. Regarding maintenance, FEMA
believes the language is appropriate in the definition as written. The
use of ``maintenance'' is to differentiate between nature-based
approaches and natural features. Nature-based approaches are designed
to mimic natural processes, but they are not wholly naturally
occurring. As such, they may require some form of maintenance to ensure
they are performing as intended. In comparison, natural features are
those characteristics of the environment that are naturally occurring
and exist in a dynamic equilibrium, so should require little to no
maintenance in serving their purpose. FEMA understands the commenter's
concern that ``green infrastructure'' is more expansive than stated in
the NPRM and plans to provide additional resources that will
incorporate examples to address some of the specific scenarios raised
by the commenter. FEMA notes the definition of ``nature-based
approaches'' states that nature-based approaches are sometimes referred
to as ``green infrastructure.''
Comments: Two other commenters requested edits to the definition of
``nature-based approaches'' to incorporate restoration and conservation
of natural systems. The commenters stated that such edits would ensure
all relevant nature-based approaches are adequately considered. Another
commenter recommended expanding the definition of ``nature-based
approaches'' by removing the reference to ``green infrastructure'' at
the beginning of the definition and incorporating the statement
``Nature-based approaches include green infrastructure practices, as
well as conservation approaches such as the restoration of wetland and
floodplain hydrology and other river processes'' into the definition
while also revising the language regarding maintenance to state such
approaches can be self-sustaining or need ongoing maintenance.
FEMA Response: While FEMA appreciates the commenters' concerns to
include restoration or conservation of naturally occurring systems and
processes and concerns related to green infrastructure, FEMA's
definitions are consistent with the glossary definition in the Revised
Guidelines and the changes proposed by the commenters could result in
inconsistencies including inconsistent implementation across other
Federal agencies. As explained above, the Revised Guidelines help
ensure key terminology is consistent across Federal agencies
implementing FFRMS. The Revised Guidelines state that nature-based
approaches can restore natural processes, and FEMA does not believe the
definition excludes restoring or conserving natural systems. FEMA will
provide additional resources with additional examples of nature-based
approaches including more information on green infrastructure to
address the commenters' concerns. FEMA will also coordinate with other
Federal agencies regarding the use of nature-based solutions as part of
the FFRMS implementation.
FEMA appreciates the commenter's suggestion to specifically
reference ``the restoration of wetland and floodplain hydrology and
other river processes'' in the definition of ``nature-based
approaches,'' but disagrees that such an edit is needed to the
definition to address the commenter's concerns.
FEMA's longstanding requirements in 44 CFR 9.11 outline the
agency's requirements to restore and preserve the natural and
beneficial values served by floodplains and wetlands. This requirement
to restore and preserve the values served by floodplains and wetlands,
see, e.g., 44 CFR 9.11(b)(3) & (e), applies to all actions located
within a floodplain or wetland or that affect a floodplain or wetland,
including actions that use nature-based approaches.
As explained above, the use of ``maintenance'' is to differentiate
between nature-based approaches and natural features and FEMA does not
believe the changes suggested by the commenter are appropriate. Nature-
based approaches are designed to mimic natural processes, but they are
not wholly naturally occurring. As such, they may require some form of
maintenance to ensure they are performing as intended. In comparison,
natural features are those characteristics of the environment that are
naturally occurring and exist in a dynamic
[[Page 56949]]
equilibrium, so should require little to no maintenance in serving
their purpose. FEMA understands the commenter's concern that ``green
infrastructure'' is more expansive than stated in the NPRM and plans to
provide additional resources that will incorporate examples to address
some of the specific scenarios raised by the commenter. FEMA notes the
definition of ``nature-based approaches'' states that nature-based
approaches are sometimes referred to as ``green infrastructure'' and
the proposed changes merely restate language already incorporated into
the definition.
Comment: One commenter restated concerns from a 2016 NPRM comment
that the current definition listed ``green roofs'' or ``downspout
disconnection'' as examples of nature-based approaches, and recommended
FEMA provide more applicable examples of nature-based approaches,
including ``property acquisitions and relocations;'' ``dam removal;''
``levee notching, setbacks, or removal;'' and ``stream crossing
upgrades.'' The commenter also recommended FEMA expand the definition
of nature-based approaches to encompass the restoration and
conservation of natural features, providing added emphasis on the use
of actions to bolster natural flood risk and water quality management
services.
FEMA Response: FEMA's definition of ``nature-based approaches'' in
the final rule, like the definition in the NPRM, does not contain
``green roofs'' or ``downspout disconnection.'' FEMA's definition is
consistent with the Revised Guidelines glossary definition and, as
explained above, the changes proposed by the commenter could result in
inconsistencies including inconsistent implementation across other
Federal agencies. While FEMA appreciates the commenters' concerns to
include restoration or conservation of naturally occurring systems and
processes and concerns related to green infrastructure, the Revised
Guidelines help ensure key terminology is consistent across Federal
agencies implementing FFRMS. Although the Revised Guidelines state that
nature-based approaches can restore natural processes, FEMA does not
believe the definition excludes either protecting or restoring natural
processes.
FEMA referred to green roofs and downspout disconnection in the
preamble to the NPRM as potential examples of green infrastructure, but
not as part of the proposed regulatory definition. See 88 FR at 67890.
As part of implementing this final rule, FEMA will provide additional
resources with additional examples to address the commenter's concerns
as explained above.
Comment: One commenter asked how FEMA defines natural systems and
ecosystem processes.
FEMA Response: FEMA defined ``nature-based approaches'' and
``natural features'' in proposed Sec. 9.4. FEMA believes those
definitions are sufficient and the terms the commenter used are
generally accepted terms found in Executive Order 11988, as amended,
that do not require additional definition in this final rule.
8. Natural and Beneficial Values of Floodplains and Wetlands and
Natural Features
FEMA received three comments on the definitions of ``natural and
beneficial values of floodplains and wetlands'' and ``natural
features.''
Comment: One commenter requested FEMA incorporate more explicit
references to biodiversity, ecosystem functioning, and natural values
into the regulation and requested ``habitat connectivity'' be added to
the definition of ``natural and beneficial values of floodplains and
wetlands'' as an example under ``Living Resource Values.''
FEMA Response: FEMA respectfully declines the commenter's request,
as the agency believes the concept habitat connectivity is adequately
addressed under Living Resource Values through the changes made in this
final rule. Specifically, the final rule describes Living Resource
Values as ``providing habitats and enhancing biodiversity for fish,
wildlife, and plant resources.'' This language adequately encompasses
habitat connectivity, and no edits are required to the final rule.
Comment: A commenter requested FEMA include ``functions'' in
addition to values when referring to protecting or restoring
floodplains and wetlands to read ``the beneficial functions and values
of floodplains and wetlands.''
FEMA Response: FEMA's definition of ``natural and beneficial values
of floodplains and wetlands'' incorporates functions and FEMA does not
believe additional edits are required.
Comment: One commenter supported the changes proposed to the
definitions of ``natural and beneficial values of floodplains and
wetlands,'' and ``wetlands'' and additional definitions for ``nature-
based approaches'' and ``natural features'' and requested FEMA develop
post-regulatory guidance on functional floodplains and wetlands and
nature-based solutions.
FEMA Response: FEMA agrees the changes to the definitions of
``natural and beneficial values of floodplains and wetlands'' and
``wetlands'' and the addition of definitions for ``nature-based
approaches'' and ``natural features'' are helpful features of the rule.
FEMA will distribute additional resources to SLTT partners and the
public identifying what the FFRMS is, and how the agency will further
implement the Executive Orders and part 9.
9. New Construction
Comment: One commenter recommended the definition of ``new
construction'' include ``allowed new construction'' associated with
systems that must be located in the floodplain for supplementing water
supply. The commenter requested the rule require consideration of
specific stormwater runoff requirements for construction that must be
completed in the floodplain and that FEMA recognize managed aquifer
recharge (MAR)-related activities might be subject to other State and/
or Federal regulation.
FEMA Response: The definition of ``new construction'' in part 9
must be broad in nature to support the various types of projects and
activities FEMA may perform or fund. FEMA specifically incorporated
examples in the definition of ``new construction'' to relate to typical
FEMA actions, but those examples are not exhaustive. Under the 8-step
decision-making process, FEMA identifies and evaluates practicable
alternatives. If there is no practicable alternative outside of the
floodplain, such as for functionally dependent uses,\130\ the action
may be carried out in the floodplain. The types of actions described by
the commenter (managed aquifer recharge floodwater storage retention,
spillways, injection wells and other built systems that must be located
in the floodplain for their intended purpose of supplementing water
supply), would be determined to be functionally dependent uses with
likely no alternative outside of the floodplain. FEMA believes no
changes are required to the regulation language, as those types of
actions would be allowable subject to the application of the FFRMS and
the minimization requirements outlined in 44 CFR 9.11. FEMA notes some
agency actions will also be subject to other Federal, State, Tribal,
territorial, and/or local requirements and FEMA addresses this issue in
the FFRMS policy.
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\130\ Functionally dependent use means those actions which
cannot perform their intended function unless they are located in or
in close proximity to water. See 44 CFR 9.4.
---------------------------------------------------------------------------
[[Page 56950]]
10. Practicable
Comments: Two commenters were supportive of the definition of
``practicable.''
FEMA Response: FEMA agrees with the commenters that the updated
definition of ``practicable'' in Sec. 9.4 ensures nature-based
approaches are considered as practicable alternatives consistent with
Executive Order 11988, as amended.
Comment: One commenter stated the definition of ``practicable'' was
extremely vague and might not provide sufficient guidance to ensure
meaningful comparison of alternatives. Recognizing the agency's need
for a broad definition to account for differences in situations, the
commenter noted the definition did not provide much guidance to
determine what is truly ``practicable,'' as opposed to merely
expedient. The commenter requested FEMA require consideration of long-
term environmental, community, and economic benefits and costs of an
alternative, to ensure practicability determinations were not skewed
towards grey infrastructure or in-floodplain actions. The commenter
wrote those actions appeared cheaper or more convenient in the short-
term but carried greater long-term adverse effects, risks, and/or
costs.
FEMA Response: FEMA did not make significant changes to the
definition of ``practicable.'' The changes made in the NPRM and
finalized in this rule add an agency authorities factor to clarify the
agency's statutory and regulatory authorities may also limit FEMA's
actions. These changes also updated the factors for consistency with
the Revised Guidelines. FEMA does not believe additional changes are
required to the definition of ``practicable'' as the factors listed are
not all inclusive. The regulatory text in Sec. 9.9 also provides
examples and FEMA will provide additional examples in resources to
SLTTs and the public to further clarify as appropriate.
11. Restore
Comment: One comment requested the agency provide examples of what
``natural functions'' of the floodplain means and specifically include
``wildlife habitat and connectivity, carbon sequestration, and water
quality improvement.''
FEMA Response: FEMA's definition of ``restore'' in Sec. 9.4 does
not require the revisions requested. FEMA's definition of the ``natural
and beneficial values of floodplains and wetlands'' provides examples
of what natural functions of the floodplain mean and additional edits
are not required to address the commenter's concerns. Specifically, the
definition provides some examples but is not all inclusive. FEMA can
provide additional examples in resources to SLTTs and the public to
further clarify as appropriate.
12. Structures and Facilities
Comment: One commenter recommended linear transportation structures
not fall under the definition of ``structures.''
FEMA Response: FEMA defines both ``structures'' and ``facilities''
in Sec. 9.4 and the agency believes these definitions are sufficiently
clear. In the FFRMS policy, FEMA addresses both structures and
facilities and how the agency will apply FFRMS to each. See section G
of the FFRMS policy for more guidance on facilities. FEMA edited the
FFRMS Policy accompanying this final rule to further clarify that
section G.2 applies to ``facilities.'' Linear transportation structures
fall under the definition of ``facilities'' for purposes of this part.
13. Wetlands
While one commenter wrote in support of the revised definition of
``wetlands,'' three other commenters requested revision to the
definition.
Comment: One commenter stated the use of the United States Fish and
Wildlife Service (USFWS) 's wetlands definition was problematic,
stating in their experience, USFWS declined to engage on projects
unless the projects involved species protected by the Endangered
Species Act (ESA) and their habitat. The commenter noted water projects
and developments involve regulation by the U.S. Army Corps of Engineers
(USACE) more often than with USFWS, and recommended FEMA revise the
definition of ``wetlands'' to use the USACE's long-standing wetland
definition.
FEMA Response: FEMA appreciates the commenter's suggestion and
declines to change the definition as the agency believes the reference
to USFWS is more appropriate than to USACE's definition. FEMA's
definition is consistent with the definition of ``wetlands'' in
Executive Order 11990 and the agency is implementing that Executive
Order with this regulation. FEMA believes changes to this definition
may result in conflating the implementation of Executive Order 11990
with the Clean Water Act. While the commenter is correct that the USACE
definition focuses on flood attenuation or mitigation, FEMA's part 9
implementation goes beyond those considerations for wetlands. FEMA also
notes the agency performs Section 7 consultation with USFWS under ESA
for actions that affect protected species or critical habitat.
Comment: One commenter recommended FEMA retain the reference to the
specific publication provided in the definition of ``wetlands.'' The
commenter stated the publication provided extensive examples and
further clarification of what should be considered wetlands and was
still used in the definition by the USFWS. The commenter requested the
definition be updated to the correct year of publication in the final
rule.
FEMA Response: FEMA's definition is consistent with the definition
of ``wetlands'' in Executive Order 11990, and the agency is
implementing that Executive Order with this regulation. FEMA believes
deleting the reference to a specific publication in the regulations
will not result in a less specific definition as the commenter states.
Eliminating references to specific publications helps reduce the
potential for the regulations to be outdated if the publication is
updated or replaced. As the commenter pointed out, the current
regulatory text does not reference the correct year of the publication
and the final rule will eliminate confusion around this point. FEMA
still anticipates remaining consistent with the USFWS definition for
purposes of part 9.
Comment: One commenter recommended the final rule specify whether
artificially induced and/or isolated wetlands were included and add
clearer agency expectations for subsections under the agency's FFRMS
policy, particularly those involving wetlands.
FEMA Response: FEMA has not changed how the 8-step process applies
to wetlands and does not intend to as part of FFRMS implementation in
this rulemaking. FEMA's definition is consistent with the definition of
``wetlands'' in Executive Order 11990 and the agency is implementing
that Executive Order with this regulation. FEMA believes the commenter
is conflating the implementation of Executive Order 11990 with the
Clean Water Act and FEMA's part 9 implementation goes beyond those
considerations for wetlands.
14. Additional Definitions Requested
In addition to the new and revised definitions provided in the
NPRM, commenters requested FEMA add definitions to the final rule.
Comment: One commenter stated the need for clearer definitions was
paramount to avoiding ambiguity and ensuring a shared understanding of
key
[[Page 56951]]
terms. The commenter referenced the Climate-Informed Science Approach
(CISA) as a term lacking a definition in the rule as an example of the
need for more clarity.
FEMA Response: FEMA appreciates the commenter's concerns but
changes to the final rule are not required to resolve those concerns.
FEMA's explanation of the Climate-Informed Science Approach is
consistent with Executive Order 11988, as amended, and the Revised
Guidelines. Rather than providing specific definitions in regulatory
text, FEMA describes each approach in Sec. 9.7(c) and in the FFRMS
policy. FEMA believes these explanations are sufficiently clear and,
because they are consistent with the Executive Order and Revised
Guidelines, will not result in ambiguity.
Comment: One commenter recommended adding a definition of
``development'' for consistency with the NFIP at 44 CFR part 59. The
commenter also recommended adding a definition of ``non-critical
actions'' to help define structures and facilities that clearly do not
fall under the critical action standard and reduce misunderstandings.
FEMA Response: FEMA defines ``support of floodplain and wetland
development'' in Sec. 9.4 and a definition of ``development'' is
incorporated into that definition. In the FFRMS policy, FEMA clarifies
what constitutes a non-critical action as any activity that does not
meet the definition of critical action. FEMA does not believe a
specific definition in the regulatory text is necessary given the
definition of ``critical action'' already provided in Sec. 9.4.
F. FFRMS Applicability
Commenters requested clarification on the applicability of FFRMS
generally as well as to specific types of actions.
1. Generally
Comments: Two commenters sought clarification on the Federal
actions that are subject to FFRMS. Both commenters stated that the term
``action subject to the FFRMS'' could cause misinterpretation or
confusion among different Federal agencies implementing the FFRMS.
Another commenter asked whether the regulation and FFRMS policy would
affect only new construction funded by FEMA. The commenter recommended
a clarification to help States understand where FEMA's regulations
implementing the FFRMS apply and whether FFRMS applied to State DOT
projects funded through FHWA. The commenter also recommended FEMA
clarify how the FFRMS applied to FEMA-funded, non-FEMA but still
Federally-funded, and State-funded activities.
FEMA Response: FEMA defines ``action subject to the FFRMS'' as
``any action where FEMA funds are used for new construction,
substantial improvement, or to address substantial damage to a
structure or facility,'' consistent with Executive Order 11988, as
amended, and the Revised Guidelines. FEMA believes this definition is
sufficiently clear. As explained in the preamble to the NPRM, 44 CFR
part 9 applies to FEMA actions. As explained above, the requirements of
this rule apply to grants funding the new construction, substantial
improvement, or repair of substantial damage under FEMA programs such
as IA, PA, and HMA programs, and grants processed by FEMA's GPD
(involving grants for preparedness activities). All Federal agencies
will utilize the Revised Guidelines for their own FFRMS implementation.
Roads that are under the jurisdiction of another Federal agency, such
as those under the FHWA, are subject to that agency's requirements as
they generally are ineligible for funding under FEMA's grant assistance
programs.
As explained in Sec. 9.5(a)(3), FEMA will apply FFRMS only to new
actions for which assistance is made available pursuant to declarations
under the Stafford Act that are commenced on or after the effective
date of the final rule, and new actions for which assistance is made
available pursuant to notices of funding opportunity that publish on or
after the effective date of the final rule. Ongoing projects will not
be impacted by this final rule.\131\
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\131\ Note that FEMA first partially implemented the FFRMS by
policy with respect to covered projects in existing floodplains in
its Public Assistance and Hazard Mitigation Assistance programs. See
FEMA Policy 104-22-003, ``Partial Implementation of the Federal
Flood Risk Management Standard for Public Assistance (Interim),''
June 3, 2022 found at https://www.fema.gov/sites/default/files/documents/fema_fp-104-22-0003-partial-implemetnation-ffrms-pa-interim.pdf (last accessed Jan. 24, 2024) and FEMA Policy 206-21-
003-0001, ``Partial Implementation of the Federal Flood Risk
Management Standard for Hazard Mitigation Assistance Program,'' Dec.
7, 2022 found at https://www.fema.gov/sites/default/files/documents/fema_policy-fp-206-21-003-0001-implementation-ffrms-hma-program_122022.pdf (last accessed Jan. 24, 2024). Some current FEMA
actions may be subject to these partial implementation policies;
however, those actions would not be subject to this final rule or
policy.
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Comment: A commenter requested FEMA clearly define how Federally
funded expansions, renovations, rebuild, rehabilitations and similar
activities would be impacted by the FFRMS. The commenter noted many
infrastructure projects are not static structures, but rather
periodically require rehabilitation, renovation, and/or expansion and
thus would include a combination of rehabilitation of existing
construction, modification of existing infrastructure, and entirely new
infrastructure elements that would be combined during a project to
create the ``new'' final structure and/or system. The commenter stated
that FFRMS seemed to apply only to new structures that can be sited or
elevated without moving or damaging existing construction and requested
confirmation of that understanding. Another commenter commended FEMA's
proposed policy provisions for identifying actions that might be
subject to determinations of substantial damage or substantial
improvement.
FEMA Response: Part 9 does not apply only to new structures, and
FEMA believes the rule and FFRMS policy are sufficiently clear on this
point. As stated above, FEMA defines ``action subject to the FFRMS'' as
``any action where FEMA funds are used for new construction,
substantial improvement, or to address substantial damage to a
structure or facility,'' consistent with Executive Order 11988, as
amended, and the Revised Guidelines.
In Sec. 9.4, FEMA defines ``new construction'' in this final rule
as ``the construction of a new structure or facility or the replacement
of a structure or facility which has been totally destroyed. New
construction includes permanent installation of temporary housing units
because even though such housing may initially have been planned to be
temporary, when it is permanently installed, it becomes a permanent
housing solution for survivors. New construction in wetlands includes
draining, dredging, channelizing, filling, diking, impounding, and
related activities.'' Also in Sec. 9.4, FEMA further defines
``substantial improvement'' as any repair, reconstruction or other
improvement of a structure or facility, which has been damaged in
excess of, or the cost of which equals or exceeds, 50 percent of the
pre-disaster market value of the structure or replacement cost of the
facility (including all ``public facilities'' as defined in the
Stafford Act) (1) before the repair or improvement is started, or (2)
if the structure or facility has been damaged and is proposed to be
restored. Substantial improvement includes work to address substantial
damage to a structure or facility. As it related to the commenter's
stated concern, if a facility is an essential link in a larger system,
the percentage of damage will be based on the cost of repairing the
damaged facility relative to
[[Page 56952]]
the replacement cost of the portion of the system which is
operationally dependent on the facility. The term ``substantial
improvement'' does not include any alteration of a structure or
facility listed on the National Register of Historic Places or a State
Inventory of Historic Places. Where an action falls under one of the
definitions above, it would be considered an action subject to FFRMS.
The revisions to part 9 do not change FEMA's long-standing
requirement as part of implementing Executive Order 11988, as amended,
to only perform or fund actions within or affecting floodplains if
those actions are the only practicable alternative. Through the 8-step
process, FEMA considers alternative locations, alternative actions,
nature-based solutions, and the no action alternative under the
practicability analysis. If there is no practicable alternative, FEMA
will perform or fund the action and will minimize any adverse impacts
when doing so.
2. FEMA Specific Programs
Commenters also commented on the applicability of FFRMS to specific
FEMA programs.
Comments: Some commenters stated support for FEMA's policy
regarding FFRMS applicability to temporary and permanent housing. One
commenter requested FEMA give careful consideration to potentially
unintended consequences of greatly expanded requirements for victims of
a catastrophic disaster in need of emergency federal disaster
assistance. The commenter cited a study related to the impacts of
Hurricane Ian and discussed how the flood extent in many areas was
approximated by the Special Flood Hazard Area (SFHA) boundaries, noting
without constraints in development in the SFHA, flood damages for the
area studied would have skyrocketed. Another commenter expressed
concern that the proposed rule could increase local costs and delay
affordable housing projects. The commenter requested FEMA consider ways
to advance affordable housing projects, such as through expansion of
its ``Housing Mitigation Assistance'' grants and requested the agency
make accommodations for such projects to support a more expeditious
regulatory process.
FEMA Response: FEMA appreciates the commenter's interest in the
agency's Individuals and Households Program. FEMA's revisions in Sec.
9.13 reflect the agency's consideration of the need for disaster
survivors to quickly recover, while also addressing the need for more
resilient housing. FEMA notes this rulemaking will not expand the SFHA
for NFIP purposes nor does it apply to a local community's permitting
processes under the NFIP's floodplain management regulations. Those
regulations are found at 44 CFR part 59 et seq. FEMA notes the agency
does not have ``Housing Mitigation Assistance'' grants, but where FEMA
provides funding for housing, the agency will consider social concerns
and economic aspects as part of the practicability analysis in the 8-
step process.
Comments: Multiple commenters referenced the NFIP and FFRMS
applicability. One commenter stated that FEMA only applies the 8-step
process programmatically to the NFIP as a whole. The commenter further
noted the FFRMS would only apply to new construction or substantial
improvement to existing structures or facilities that receive FEMA
funding. The commenter stated support for exempting all privately
funded activities from the FFRMS as those activities were beyond the
scope of FEMA's authority and would create challenges in determining
the geographic scope of the FFRMS defined floodplain and increased
construction costs that would negatively impact housing affordability.
Another commenter wrote asking if the FFRMS policy would impact
where new flood insurance policies could be issued. The commenter
recommended FEMA consider coordinating with other Federal agencies and
expanding the Coastal Barrier Resources Act (CBRA) and/or identifying
additional areas where new flood insurance policies could not be issued
based on FFRMS approaches.
A third commenter wrote the work needed to restore floodplain
connectivity should have a streamlined regulatory process and
additional financial and technical support to meet regulatory burdens.
The commenter stated a fundamental tenet of the NFIP was to discourage
increases in base flood elevation from ``traditional development,''
whereas floodplain restoration projects are intended to increase the
base flood elevation in areas where it is safe and socially acceptable
to do so. The commenter stated floodplain restoration work was urgently
needed in many flood-prone areas, but the NFIP requirements hindered
federal investments in floodplain restoration work. The commenter
stated that regulatory reforms are needed to ensure Federal restoration
dollars could be leveraged to help reduce flood risks and damages.
FEMA Response: FEMA agrees with the commenter that privately funded
activities are not subject to this rule. This rulemaking is not
regulating privately funded action; instead, this rulemaking applies to
actions subject to the FFRMS, i.e., Federally funded projects for new
construction, substantial improvement, and repairs to address
substantial damage. For the purposes of regulating private activities,
the NFIP's floodplain management standards will continue to generally
apply in NFIP participating communities.\132\ The commenter is also
correct that FEMA applies part 9 programmatically to the NFIP.\133\
Notwithstanding the programmatic application of part 9 to the NFIP, the
expanded floodplain established under this rule has no impact on where
new flood insurance policies may be issued (including community
eligibility for the NFIP participation and individual premiums) because
the expanded floodplain only applies to actions subject to the FFRMS.
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\132\ The NFIP's floodplain management standards are generally
found at 44 CFR 60.3. There are variances and exceptions from the
standards written into 60.3. Additionally, some communities have
higher standards above the NFIP's floodplain management minimum
requirements.
\133\ A comprehensive list of FEMA programs to which Part 9 does
not apply appears at 44 CFR 9.5. The exemption for actions under the
NFIP is located at 44 CFR 9.5(f).
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In short, part 9 does not apply to the issuance of flood insurance
policies. This rule and accompanying policy will have no effect on
where new flood insurance policies may be issued. FEMA notes that only
Congress can expand CBRA, and USFWS has primary authority for the
implementation of CBRA. While FEMA appreciates the commenter's concerns
regarding floodplain restoration, regulatory reforms to the NFIP
suggested by the commenter are beyond the scope of this rulemaking.
3. Facilities
Four commenters had questions regarding the applicability of the
final rule and FFRMS policy to facilities.
Comment: A commenter recommended FEMA clarify special
considerations for infrastructure projects by providing more
information and guidance on how to implement FFRMS for ``facilities.''
The commenter stated essential facilities like roadways, bridges, and
utilities might be vulnerable to flood damage and required even more
attention, but the rule was largely silent as to how FFRMS applied to
these projects.
The same commenter wrote of their experience with agencies
struggling to adequately assess relevant flood risks when evaluating
vital facilities and
[[Page 56953]]
recommended incorporating language into Steps 1 and 5 of the 8-step
process, clarifying appropriate considerations and methods to apply the
FFRMS to facilities. The commenter requested FEMA set forth factors to
consider when defining the FFRMS floodplain for facilities (such as
considering a larger project area and vulnerability of nearby assets
that could be affected) to encourage better, more informed decisions.
The commenter also recommended FEMA revise Sec. 9.11 to clarify that
although elevation is not universally required for facilities,
mitigation measures for facilities subject to the FFRMS must be
designed to be resilient to the FFRMS flood elevation.
Another commenter encouraged FEMA to provide more information and
guidance in the final rule on implementing the FFRMS for facilities.
The commenter stated that most facilities would likely require
different implementation considerations and standards than those
defined in the rule for structures. The commenter stated that elevation
may not be an appropriate means to improve or achieve resilience for
facilities and requested that the final rule and related guidance
provide variables to consider, which could help define appropriate
resilience measures in addition to or in place of elevation.
FEMA Response: FEMA appreciates the commenter's references to
challenges with assessing relevant flood risks for vital facilities and
infrastructure. As the commenter notes, several factors must be
considered when implementing the FFRMS for facilities. FEMA believes
that the agency's 8-step process and implementing policy account for
the specific concerns raised in the examples provided. The agency's
policy reflects a preference for using the CISA that considers sea
level rise and FEMA's practicability analysis incorporates social
concerns and economic aspects into the 8-step process. FEMA's revisions
to part 9 reflect consideration of the type and criticality of the
action involved, the availability and actionability of the data, and
equity concerns in the implementation of Executive Order 11988, as
amended. FEMA also has an agency-wide initiative focused on reducing
barriers and increasing opportunities so that all people, including
those from vulnerable and underserved communities, can get help when
they need it.\134\Additionally, FEMA reviews all proposed FEMA-funded
actions for potential disproportionate and adverse human health and
environmental effects on communities with environmental justice
concerns using a standardized environmental justice compliance review
process.
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\134\ See https://www.fema.gov/emergency-managers/national-preparedness/equity (last accessed Jan. 24, 2024).
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For the reasons described below, FEMA's current proposed FFRMS
policy uses the FFRMS flood elevation and corresponding floodplain to
establish the minimum level to which a structure or facility must be
resilient. For facility projects that are subject to the FFRMS, the
FFRMS flood elevation represents the magnitude of flooding that must be
considered in incorporating flood resilient design features into
project designs. This approach allows the FFRMS to be integrated as one
element of project-specific comprehensive design methods and leaves
open the possibility of more prescriptive design requirements as
infrastructure design methods improve, better incorporating
consideration of continually changing hazard conditions.
Due to the vast diversity of facilities, the highly project-
specific nature of facilities projects, and numerous options for making
them resilient, infrastructure standards (in terms of narrowly scoped
specifications) to reduce risk from climate change and future
conditions currently do not exist on a national level. This lack of
established standards, and the long timeline necessary to develop them,
requires consideration of less prescriptive approaches. In the absence
of such standards, Federal agencies that oversee construction of
infrastructure projects such as the FHWA and USACE apply project-
specific risk assessment and adaptive management approaches, which
generally require data collection, detailed studies, benefit-cost
analyses, and consideration of various alternatives, adaptation, and
mitigation measures.\135\
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\135\ See, e.g., Federal Highway Administration Hydraulic
Engineering Circular No. 17, 2nd Ed: Highways in the River
Environment--Floodplains, Extreme Events, Risk, and Resilience 2016,
available at https://www.fhwa.dot.gov/engineering/hydraulics/library_arc.cfm?pub_number=2&id=162 (last accessed Jan. 24, 2024),
Federal Highway Administration Hydraulic Engineering Circular No.
25, 2nd Ed: Highways in the Coastal Environment October 2014,
available at https://www.fhwa.dot.gov/engineering/hydraulics/pubs/nhi14006/nhi14006.pdf (last accessed March 28, 2024), US Army Corps
of Engineers Engineering and Construction Bulletin 2018-14: Guidance
for Incorporating Climate Change Impacts to Inland Hydrology in
Civil Works Studies, Designs, and Projects, available at https://wbdg.org/ffc/dod/engineering-and-construction-bulletins-ecb/usace-ecb-2018-14 (last accessed Jan. 24, 2024), and US Army Corps of
Engineers Engineer Regulation No. 1100-2-8162: Incorporating Sea
Level Change in Civil Works Programs, June 2019, available at
https://www.publications.usace.army.mil/USACE-Publications/Engineer-Regulations/udt_43546_param_orderby/Pub_x0020_Number/udt_43546_param_direction/descending/?udt_43546_param_page=3 (last
accessed Jan. 24, 2024).
---------------------------------------------------------------------------
FEMA already incorporates many of these approaches into its grant
requirements. FEMA Recovery Interim Policy 104-009-11 Version 2.0,
``Consensus-Based Codes, Specifications and Standards for Public
Assistance'' (December 20, 2019) requires ``application of the latest
nationwide consensus-based codes, specifications and standards that
incorporate hazard resistance for PA funded projects,'' including
buildings, electric power, roads, bridges, potable water, and
wastewater.\136\ Appendix A of the policy includes an extensive list of
risk assessment and adaptive management methods which applicants are
required to use ``as the minimum design criteria for eligible
projects.'' Eligibility for Hazard Mitigation Assistance funding
requires SLTT partners to have up-to-date hazard mitigation plans,
which incorporate community-wide risk assessment and adaptive
management approaches applicable to facilities or linear
infrastructure.
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\136\ https://www.fema.gov/sites/default/files/2020-05/DRRA1235b_Consensus_BasedCodes_Specifications_and_Standards_for_Public_Assistance122019.pdf (last accessed Apr. 2, 2024).
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Further, FEMA does not believe changes to the final rule are
required as the regulation applies the 8-step process to any action, as
defined in 44 CFR 9.4, which includes facilities. In the 8-step
process, FEMA considers not just whether proposed actions would be in a
floodplain or wetland, but also whether the proposed action would
affect a floodplain or wetland. FEMA has routinely applied Steps 1 and
5 to facilities. FEMA also applies Step 4, which identifies impacts of
a proposed action at and beyond the proposed action location. FEMA will
distribute additional resources for the public and SLTT partners to
help identify what the FFRMS is, and how the agency will implement the
Executive Orders. These resources will help applicants better
understand the FFRMS as they apply for FEMA programs.
Section G.2. of FEMA's FFRMS policy discusses flood risk
minimization for facilities. FEMA's FFRMS policy uses the FFRMS flood
elevation and corresponding floodplain to establish the minimum level
to which a structure or facility must be resilient. For facilities
projects that are subject to the FFRMS, the FFRMS flood elevation
represents the magnitude of flooding that must be considered in
incorporating flood resilient design features into facility project
designs.
[[Page 56954]]
This approach allows the FFRMS to be integrated as one element of
project-specific comprehensive design methods, and leaves open the
possibility of more prescriptive design requirements as infrastructure
design methods improve, better incorporating consideration of
continually changing hazard conditions.
FEMA further believes that revising the text of Sec. 9.11 to
clarify that mitigation measures for facilities subject to FFRMS must
be designed to be resilient to the FFRMS flood elevation, as the
commenter requested, is not necessary. As the commenter noted, this
point is made in the FFRMS policy, and FEMA does not believe changes to
the regulatory text are required to achieve the FFRMS resilience.
Comment: One commenter raised several questions regarding FFRMS
implementation and facilities. The commenter stated that building
transportation infrastructure to survive extreme events is a good
investment, but the FFRMS is overly conservative and based on risk of
low probability. The commenter asked about the applicability of part 9
and the FFRMS to a range of potential actions from linear
transportation structures to roadways, bridges, and culverts and raised
concerns with how FFRMS application to these types of actions might
raise conflicts with other Federal, State, or local agencies. The
commenter also stated concerns about elevating facilities and provided
an example of where the FFRMS would elevate a bridge to a height
greater than the flood-prone height of the connecting roads. The
commenter recommended FEMA clarify roadways and associated bridges and
culverts were not required to perform an alternatives analysis for
their location in a floodplain.
FEMA Response: FEMA appreciates the commenter's concerns regarding
the applicability of FFRMS and part 9 to specific infrastructure
projects. FEMA defines both ``structures'' and ``facilities'' in Sec.
9.4 and the agency believes these definitions are sufficiently clear to
explain FFRMS and part 9 applicability to specific actions. Executive
Order, 11988, as amended, requires both structures and facilities be
resilient against current and future flood hazards. FEMA believes that,
as described by the commenter, roadways, bridges, culverts, and linear
transportation structures would fall under the definition of
``facilities'' for this part and thus would not necessarily be exempt
from part 9.
As explained above, FEMA defines ``action subject to the FFRMS'' as
``any action where FEMA funds are used for new construction,
substantial improvement, or to address substantial damage to a
structure or facility.'' The FFRMS applies to grants for projects
funding the new construction, substantial improvement, or repair of
substantial damage under FEMA programs such as IA, PA, and HMA
programs, and grants processed by FEMA's GPD. FEMA does not fund
repairs or improvements to Federal-aid roads, and this rulemaking would
not be applicable to those roads. Rather, the FHWA regulations would
govern those actions. Where FEMA may provide funding, FEMA's FFRMS
policy provides details on how FEMA will coordinate with other agencies
when implementing actions in the same area as another Federal agency.
See FFRMS policy Section H, page 9. When coordinating with other
Federal agencies, FEMA generally defaults to the FFRMS policy approach
in FEMA's FFRMS policy, as appropriate. Where FEMA provides funding for
these activities, FFRMS applies to improve resilience to facilities
against both current and future flood risks.
In the FFRMS policy, FEMA addresses both structures and facilities
and how the agency will apply FFRMS to each. See section G of the FFRMS
policy for more guidance on facilities. Note FEMA edited the FFRMS
policy accompanying this final rule to further clarify that section G.2
applies to ``facilities,'' by using the term ``Facilities'' instead of
the term ``Non-Structure Facilities.''
Further, Sec. 9.11(d)(6) states when FEMA is providing funding, a
more restrictive Federal, State, or local floodplain management
standard will be applied. Section G.2 of FEMA's FFRMS policy further
discusses flood risk minimization for facilities and clarifies that
FEMA would also allow methods other than elevation to be used to
improve resilience against flooding up to the flood elevation of the
FFRMS floodplain in conjunction with any other applicable codes and
standards.\137\
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\137\ See FFRMS Policy, pg. 8, ``Particularly in cases where
elevation may not be feasible or appropriate for non-structure
facilities, the FFRMS floodplain, determined according to the
process described in section C of this policy, establishes the level
to which a structure or facility must be resilient. Resilience
measures include using structural or nonstructural methods to reduce
or prevent damage; elevating a structure; or, where appropriate,
designing it to adapt to, withstand and rapidly recover from a flood
event.''
---------------------------------------------------------------------------
FEMA's FFRMS policy uses the FFRMS flood elevation and
corresponding floodplain to establish the minimum level to which a
structure or facility must be resilient. The minimization requirements
are similar to how FEMA currently implements part 9 for the 1 percent
and 0.2 percent annual chance floods. For facility projects that are
subject to the FFRMS, the FFRMS flood elevation represents the
magnitude of flooding that must be considered in incorporating flood
resilient design features into facility project designs. This approach
allows the FFRMS to be integrated as one element of project-specific
comprehensive design methods and leaves open the possibility of more
prescriptive design requirements as infrastructure design methods
improve, better incorporating consideration of continually changing
hazard conditions. Further, as explained above, FEMA already
incorporates FHWA Hydraulic Engineering Circulars 17 and 25 (Highways
in the River Environment and Highways in the Coastal Environment) into
its Public Assistance grant requirements.
To address the commenter's concerns regarding overly conservative
methods, FEMA notes the FFRMS is a flexible framework to define the
floodplain that allows agencies to choose among several approaches to
expand the base floodplain to a higher vertical elevation and
corresponding horizontal extent for all Federally funded projects.
FEMA's FFRMS policy is not a one-size-fits-all approach. Rather, FEMA's
policy approach is flexible to address criticality of the action being
taken, data availability based on the location of the action, and
equity concerns.
Finally, the final rule does not change many of the current
requirements for proposed actions. Proposed actions involving roadways,
bridges, and culverts located in or impacting floodplains and wetlands
continue to be subject to alternatives analysis under Executive Order
11988, as amended, and part 9. For certain small-scale actions under
FEMA's PA program, the proposed rule increases the dollar value
thresholds for projects that are exempt from the 8-step process or that
are subject to an abbreviated 8-step review.
Comment: The same commenter stated that enhancing resilience should
be the responsibility of the States to enable community-specific
strategies. The commenter requested clarification on whether States and
localities could use Federal funds for resilience measures, such as
raising or widening roadways and bridges to meet the increased vertical
elevation and expanded horizontal floodplain while still qualifying for
FEMA funding. The commenter further stated the FFRMS would remove risk
to structures from risk-based design criteria some States had in place
and would require a one-size-fits-all approach for bridge-sized
[[Page 56955]]
structures. The commenter also noted some non-Federal partners might
not allow States to select the FFRMS approach. The same commenter
stated the FFRMS approaches added an unnecessary factor of safety for
proposed actions, as many States would replace a structure multiple
times before the CISA floodplains would take place. The commenter
stated it was impossible to accurately predict change over long periods
of time due to the nature of these systems.
FEMA Response: FEMA agrees that States and localities should lead
their own efforts to enhance resilience. FFRMS is required for Federal
actions that are subject to the FFRMS to protect against current and
future flood risks and help ensure that Federally-funded projects last
as long as intended. FEMA's FFRMS policy is not a one-size-fits-all
approach. Rather, FEMA's policy approach is flexible to address
criticality of the action being taken, data availability based on the
location of the action, and equity concerns. Risk is an inherent factor
in applying all of the FFRMS approaches. FEMA considers the criticality
of the action in determining the level of risk that must be considered
in minimizing flood hazards. Critical actions are those actions for
which even a slight chance of flooding is too great and would be
protected to a higher level under the FFRMS.
FEMA explained above the applicability of the FFRMS and the 8-step
process generally to facilities. As noted above, part 9 only applies to
FEMA actions. Where FEMA may provide funding, FEMA's FFRMS policy
provides details on how FEMA will apply the appropriate FFRMS approach
to improve resilience to facilities against both current and future
flood risks.
SLTTs can provide input into the determination. Pursuant to 44 CFR
9.11(d)(6), a more restrictive Federal, State, or local standard will
be used in lieu of the FFRMS. FEMA values additional input from SLTT
partners and the public in the 8-step process. FEMA notes, where the
agency provides funding, any increased costs are generally eligible for
funding under FEMA's assistance programs subject to cost share
requirements.
Regarding the commenter's concerns about replacing a facility or
structure several times over a period of time, FEMA's preferred
approach (CISA) incorporates service life as part of determining the
FFRMS floodplain. FEMA understands the commenter's concerns and will
determine the appropriate service life on a case-by-case basis for each
action. The FFRMS Job Aid provides additional information on service
life and how FEMA will make those individual determinations.\138\
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\138\ See FFRMS Job Aid, pg. 14.
---------------------------------------------------------------------------
Comment: The same commenter also wrote by raising the base flood
elevation, the FFRMS would make the floodway obsolete and asked if FEMA
would stop using floodways to regulate construction, and let local
governments decide how much development was acceptable while adhering
to the FFRMS. The commenter further recommended ``temporary
encroachments,'' such as temporary structures required for bridge
construction, be explicitly exempted from the FFRMS.
FEMA Response: FEMA assumes the commenter's reference to the base
flood elevation is the base flood elevation established and applicable
under the NFIP. This final rule does not raise the base flood elevation
under the NFIP. The NFIP is a program through which property owners in
participating communities can purchase Federal flood insurance as a
protection against flood losses.\139\ As a condition of eligibility, a
community must adopt and enforce floodplain management regulations that
incorporate NFIP minimum floodplain management criteria developed by
the Administrator.\140\ Further information regarding FEMA's minimum
floodplain management standards for the NFIP can be found at 44 CFR
part 59 et seq. Any update to those standards would require a
rulemaking to revise the appropriate regulatory sections of the CFR. By
contrast, the FFRMS as implemented by this rulemaking, only applies to
actions where FEMA funds are used for new construction, substantial
improvement, or repairs to address substantial damage to structures and
facilities.\141\
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\139\ 42 U.S.C. 4011(a).
\140\ 42 U.S.C. 4011(a) and (b); 42 U.S.C. 4102; 44 CFR 59.2(b),
59.22(a)(3), 60.1(d).
\141\ See ``Guidelines for Implementing Executive Order 11998,
Floodplain Management, and Executive Order 13690, Establishing a
Federal Flood Risk Management Standard and a Process for Further
Soliciting and Considering Stakeholder Input,'' 80 FR 64008 (Oct.
22, 2015) (providing notice of the availability of the Revised
Guidelines in the docket for the rulemaking at https://www.regulations.gov/document/FEMA-2015-0006-0358 (main content) and
https://www.regulations.gov/document/FEMA-2015-0006-0372
(appendices)) also available at https://www.fema.gov/sites/default/files/documents/fema_implementing-guidelines-EO11988-13690_10082015.pdf (last accessed Mar. 11, 2024).
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As explained above, Sec. 9.4 defines both ``floodway'' and
``regulatory floodway.'' The definition of ``floodway'' was not changed
with this final rule and the definition of ``regulatory floodway'' was
further clarified by eliminating the reference to a specific amount set
by the NFIP and instead defining the term to mean the area regulated by
Federal, State, or local requirements to provide for the discharge of
the base flood so that the cumulative rise in water surface is no more
than a designated amount above the base flood elevation. These edits
more accurately encompass situations where communities have adopted
more restrictive floodway definitions than the minimum specified by the
NFIP. The changes are intended to help stakeholders better understand
what a regulatory floodway is and how it is determined without tying
the term to a specific amount that can change under the NFIP.
Regarding temporary encroachments, Sec. 9.5(c)(1) exempts actions
under PA category B pursuant to section 403 of the Stafford Act. Those
actions may include temporary repairs to structures and facilities. Any
temporary work associated with permanent work, however, is generally
included in the 8-step analysis for the permanent action.
Comment: A commenter stated the RIA was limited and inadequate and
cited several examples of where FEMA should improve the RIA.
Specifically, the commenter stated that FEMA attempted to isolate a
population of actions where the standards would be applied, limiting
the analysis to structures that will be paid for with Federal funds and
did not capture the costs and benefits of the regulatory alternatives
that would be associated with applying the FFRMS to Federal licenses
and permits. The commenter also stated that FEMA did not consider the
impacts of the new standards on the floodplain regulations mandated for
communities that participate in the NFIP and the economic impacts of
applying the new standards to NFIP floodplain mapping and the
accreditation of levees under the NFIP. The commenter further stated
accreditation was mapping and the scope of 44 CFR part 9 included
application of the 8-step process to NFIP mapping.
FEMA Response: FEMA appreciates the commenter's suggestions
regarding the RIA but believes the commenter's requests go beyond the
scope of this rulemaking. FEMA disagrees with the commenter that the
RIA should capture costs and benefits associated with Federal licenses
and permits. The changes made to part 9 to implement FFRMS only apply
to actions subject to the FFRMS. FEMA defines ``action subject to the
FFRMS'' as ``any action where FEMA funds are used for new construction,
substantial improvement,
[[Page 56956]]
or to address substantial damage to a structure or facility,''
consistent with Executive Order 11988, as amended, and the Revised
Guidelines. The FFRMS applies to grants for projects funding the new
construction, substantial improvement, or repair of substantial damage
under FEMA programs such as IA, PA, and HMA programs, and grants
processed by FEMA's GPD. Accordingly, the scope of FEMA's regulatory
impact analysis is limited to the FEMA projects where the FFRMS
standards would be applied.
FEMA further does not believe the agency is required to consider
the impacts of the new standards on the floodplain regulations mandated
for communities that participate in the NFIP and the economic impacts
of applying the new standards to NFIP floodplain mapping and the
accreditation of levees under the NFIP. As explained above, the NFIP is
a program through which property owners in participating communities
can purchase Federal flood insurance as a protection against flood
losses. As a condition of eligibility, a community must adopt and
enforce floodplain management regulations that incorporate NFIP minimum
floodplain management criteria developed by the Administrator. Further
information regarding FEMA's minimum floodplain management standards
for the NFIP can be found at 44 CFR part 59 et seq. By contrast, the
FFRMS as implemented by this rulemaking, only applies to actions where
FEMA funds are used for new construction, substantial improvement, or
repairs to address substantial damage to structures and facilities.
G. FFRMS Approaches
1. CISA
Several commenters expressed support for the use of the CISA but
sought additional clarification on implementation of the approach. A
few commenters raised concerns with the use of the CISA.
General Comments
Comment: A commenter stated utilizing the CISA to determine the
FFRMS floodplain where possible was of critical importance as CISA
offered a forward-thinking approach to improve resilient development
considering both current and future flood risk. The commenter noted the
necessary data and modeling capabilities underpinning CISA have
continued to expand in recent years, making CISA an increasingly
practicable methodology for more accurately determining the extent of
the FFRMS floodplain.
FEMA Response: FEMA agrees with the commenter that since the
introduction of the CISA in 2015, additional data has become available
to better inform CISA.\142\ FEMA believes data availability and
actionability will continue to advance for CISA in the future.
Specifically, FEMA expects more data will be developed, supporting
broader-based application of CISA as agencies implement the FFRMS, and
this data will be considered and incorporated into future updates of
the FFRMS and FEMA's implementation thereof. FEMA's policy approach is
to use CISA where available, recognizing the data is still not
available in every location.
---------------------------------------------------------------------------
\142\ See ``Federal Flood Risk Management Standard Climate-
Informed Science Approach (CISA) State of the Science Report,''
available at https://www.whitehouse.gov/wp-content/uploads/2023/03/Federal-Flood-Risk-Management-Standard-Climate-Informed-Science-Approach-CISA-State-of-the-Science-Report.pdf?trk=public_post_comment-text (last accessed Jan. 24,
2024), https://www.fema.gov/floodplain-management/intergovernmental/white-house-flood-resilience-interagency-working-group (last
accessed Jan. 24, 2024), and posted to the public docket for this
rulemaking at https://www.regulations.gov/document/FEMA-2023-0026-0007.
---------------------------------------------------------------------------
Comment: Two commenters wrote the CISA did not promote
predictability or reduce uncertainty as required by Executive Orders
12866 and 13563 and instead left the public to guess a standard from a
range of possible climate scenarios. The commenters stated questions
regarding the flood hazard area and elevation remain unanswered within
the CISA and the approach lacked specific criteria for making those
determinations. The commenters noted FEMA did not propose to require
the use of CISA in the agency's 2016 NPRM because of the lack of
available CISA data and stated those concerns still exist. The
commenters further stated that the lack of coherent decision criteria
within the CISA raised concerns about the clarity of Congressional
authority guiding the standard.
FEMA Response: FEMA disagrees with the commenters that the CISA
results in uncertainty for the public as the agency provided
information on the CISA with the NPRM. Appendix H of the Revised
Guidelines \143\ provides an overview of the available and actionable
data for CISA, which is the basis for interagency supporting tools to
implement the FFRMS. As explained above, the Science Subgroup convened
by the Flood Resilience Interagency Working Group (IWG) of the National
Climate Task Force published the FFRMS CISA State of the Science
Report.\144\ The FFRMS CISA State of the Science Report refines the
initial framework from Appendix H and specifically identifies the
latest sea level rise projections from the National Climate Assessment
as actionable, stating that each agency should factor projected
regional/local sea level change into Federal investment decisions
located as far inland as the extent of estimated tidal influence, now
and in the future, using the most appropriate methods for the scale and
consequence of the decision.\145\ This report is the basis of the
interagency implementation and supporting tools such as the FFRMS Job
Aid.\146\ FEMA is relying on these interagency processes to select and
evaluate the data and methods used. FEMA published the FFRMS Job Aid
and the FFRMS CISA State of the Science Report in the public docket
associated with this rulemaking.\147\ FEMA also posted the FFRMS Job
Aid on its website \148\ and currently plans to use the methodology
found in the FFRMS Job Aid to determine the FFRMS floodplain as
explained above.
---------------------------------------------------------------------------
\143\ Available at https://www.fema.gov/sites/default/files/documents/fema_implementing-guidelines-EO11988-13690_10082015.pdf
(last accessed Jan. 24, 2024).
\144\ Available at https://www.whitehouse.gov/wp-content/uploads/2023/03/Federal-Flood-Risk-Management-Standard-Climate-Informed-Science-Approach-CISA-State-of-the-Science-Report.pdf?trk=public_post_comment-text (last accessed Jan. 24,
2024), https://www.fema.gov/floodplain-management/intergovernmental/white-house-flood-resilience-interagency-working-group (last
accessed Jan. 24, 2024), and posted to the public docket for this
rulemaking at https://www.regulations.gov/document/FEMA-2023-0026-0007.
\145\ FFRMS CISA State of the Science Report, pg. 23.
\146\ See https://www.fema.gov/sites/default/files/documents/fema_ffrms-floodplain-determination-job-aid.pdf (last accessed Jan.
24, 2024) and posted to the public docket for this rulemaking at
https://www.regulations.gov/document/FEMA-2023-0026-0004.
\147\ See https://www.regulations.gov/document/FEMA-2023-0026-0004.
\148\ See https://www.fema.gov/sites/default/files/documents/fema_ffrms-floodplain-determination-job-aid.pdf (last accessed Jan.
24, 2024).
---------------------------------------------------------------------------
FEMA believes the policy approach detailed in the agency's FFRMS
Policy is sufficiently certain for FFRMS implementation. As detailed in
the FFRMS Policy, FEMA will use the CISA when such data is available
and actionable as further explained in Appendix H of the Revised
Guidelines \149\ and refined in the FFRMS CISA State of the Science
Report.\150\ Where the CISA data is not available and/or actionable,
the agency will use either the FVA or 0.2PFA depending on the
criticality of the action and data availability. Consistent with the
[[Page 56957]]
information in the FFRMS CISA State of the Science Report regarding
data availability/actionability,\151\ FEMA will initially rely on the
methodology from the FFRMS Job Aid \152\ to make the CISA, FVA, and
0.2PFA determinations.
---------------------------------------------------------------------------
\149\ Revised Guidelines, pgs. 16-17 and 50-52.
\150\ FFRMS CISA State of the Science Report, pgs. 7-8.
\151\ Id.
\152\ FFRMS Job Aid, pgs. 7-11 generally.
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FEMA understands data availability and actionability is a key
factor in completing this analysis in a consistent, equitable manner.
As stated above, since the introduction of the CISA in 2015, additional
data has become available to better inform CISA.\153\ FEMA believes
data availability and actionability will continue to advance for CISA
in the future. However, as actionable climate data are currently only
available along low-lying coastal shorelines on the Atlantic and Gulf
Coasts not subject to runup or overtopping pursuant to the FFRMS CISA
State of the Science Report,\154\ FEMA is proposing the FVA and 0.2PFA
alternatives in the absence of actionable CISA data. FEMA notes,
consistent with current practice, the agency will continue make the
floodplain determinations as part of the action taken, reducing the
burden on applicants in the process. FEMA estimated the cost for
determining the appropriate FFRMS floodplain in the Administrative Cost
section within the RIA.
---------------------------------------------------------------------------
\153\ See ``Federal Flood Risk Management Standard Climate-
Informed Science Approach (CISA) State of the Science Report,''
available at https://www.whitehouse.gov/wp-content/uploads/2023/03/Federal-Flood-Risk-Management-Standard-Climate-Informed-Science-Approach-CISA-State-of-the-Science-Report.pdf?trk=public_post_comment-text (last accessed Jan. 24,
2024), https://www.fema.gov/floodplain-management/intergovernmental/white-house-flood-resilience-interagency-working-group (last
accessed Jan. 24, 2024), and posted to the public docket for this
rulemaking at https://www.regulations.gov/document/FEMA-2023-0026-0007.
\154\ FFRMS CISA State of the Science Report, pgs. 22-23 and 28.
---------------------------------------------------------------------------
CISA Implementation
Commenters inquired as to how FEMA would implement CISA as part of
the agency's FFRMS implementation.
Comment: A commenter requested FEMA amend Sec. 9.7(c)(i)(A) to
require an assumption that ``climate impacts would be more rather than
less severe under conditions of uncertainty.''
FEMA Response: FEMA is not codifying the specific climate scenarios
to be used as part of the CISA analysis. As previously explained, FEMA
is relying on interagency tools to determine CISA flood elevations and
corresponding horizontal floodplains. FEMA will initially implement
this final rule using the FFRMS Job Aid that was published in the
public docket associated with this rulemaking along with the proposed
rule. The FFRMS Job Aid is also on FEMA's website.\155\
---------------------------------------------------------------------------
\155\ See https://www.fema.gov/sites/default/files/documents/fema_ffrms-floodplain-determination-job-aid.pdf (last accessed Jan.
24, 2024) and posted to the public docket for this rulemaking at
https://www.regulations.gov/document/FEMA-2023-0026-0004.
---------------------------------------------------------------------------
Comments: One commenter characterized CISA as a framework built
upon continually evolving models, projections, and assumptions
regarding climate change and anticipated future conditions. The
commenter stated the decision criteria under the CISA approach was not
adequately defined in the rule and the information provided about CISA
in the rule regarding the best available information remained
unspecified, raising concerns about project implementation and general
uncertainty. Another commenter recommended that FEMA make clear its
ability to update how it implements the FFRMS approaches as necessary
according to the latest climate science, rather than going through a
rulemaking process for each successive update. The commenter stated
that the CISA State of the Science Report provided robust information
on CISA implementation but because of its length was not necessarily an
easily accessible reference document. The commenter recommended
providing succinct and practical guidance on CISA to facilitate
implementation of the approach. The comment suggested that such
guidance could including a representative list of acceptable data
sources and guidance on how to interpret and apply these sources (for
instance, how to choose an appropriate timeline or planning scenario).
FEMA Response: FEMA's explanation of the CISA is consistent with
Executive Order 11988, as amended, and the Revised Guidelines. FEMA has
not provided specific definitions of each approach under FFRMS but
rather describes each in Sec. 9.7 and also in the FFRMS policy. FEMA
believes these explanations are sufficiently clear and will not result
in ambiguity or misunderstanding because they are consistent with the
Executive Order and Revised Guidelines.
FEMA further believes the information provided is consistent with
Executive Order 11988, as amended; the Revised Guidelines; and the CISA
State of the Science report. The information is also sufficient to
implement FFRMS and CISA. FEMA will rely on 44 CFR 9.7, FEMA Policy
104-008-2: Guidance on the Use of Available Flood Hazard
Information,\156\ the Revised Guidelines, and the FFRMS CISA State of
the Science Report in determining whether CISA and flood hazard data is
available and actionable. The FFRMS CISA State of the Science Report
\157\ is the basis of the interagency implementation and supporting
tools such as the FFRMS Job Aid.\158\ FEMA published the FFRMS Job Aid
and the FFRMS CISA State of the Science Report in the public docket
associated with this rulemaking.\159\ FEMA also posted the FFRMS Job
Aid on its website.\160\
---------------------------------------------------------------------------
\156\ Available at https://www.fema.gov/sites/default/files/2020-04/Available_Flood_Hazard_Information_Policy_104-008-2.pdf
(last accessed Mar. 12, 2024). The FFRMS proposed and final policies
reference this existing FEMA policy in Section D.1.
\157\ Available at https://www.whitehouse.gov/wp-content/uploads/2023/03/Federal-Flood-Risk-Management-Standard-Climate-Informed-Science-Approach-CISA-State-of-the-Science-Report.pdf?trk=public_post_comment-text (last accessed Jan. 24,
2024), https://www.fema.gov/floodplain-management/intergovernmental/white-house-flood-resilience-interagency-working-group (last
accessed Jan. 24, 2024), and posted to the public docket for this
rulemaking at https://www.regulations.gov/document/FEMA-2023-0026-0007.
\158\ See https://www.fema.gov/sites/default/files/documents/fema_ffrms-floodplain-determination-job-aid.pdf (last accessed Jan.
24, 2024) and posted to the public docket for this rulemaking at
https://www.regulations.gov/document/FEMA-2023-0026-0004.
\159\ See https://www.regulations.gov/document/FEMA-2023-0026-0004.
\160\ See https://www.fema.gov/sites/default/files/documents/fema_ffrms-floodplain-determination-job-aid.pdf (last accessed Jan.
24, 2024).
---------------------------------------------------------------------------
FEMA intends to leverage the FFRMS Job Aid when implementing FFRMS.
FEMA will initially rely on the methodology found in the FFRMS Job Aid
for determining the FFRMS floodplain and, as explained elsewhere in our
responses, will accept higher standards provided by other Federal,
State, or local entities in accordance with 44 CFR 9.11(d)(6) so long
as it is as least as restrictive as FEMA's FFRMS floodplain
determination and adopted by the community for use, including where
communities have adopted local CISA. FEMA will continue to collaborate
across the Federal government to develop tools to facilitate the
implementation of CISA and the FFRMS. The IWG recently released a beta
version of the Federal Flood Standard Support Tool (FFSST), a novel
interactive, map-based tool that incorporates new data to help users
identify if a Federally funded project is in the FFRMS floodplain, for
comment.\161\ FEMA intends to provide additional resources to assist
stakeholders as FFRMS is implemented.
---------------------------------------------------------------------------
\161\ 89 FR 25674 (Apr. 11, 2024).
---------------------------------------------------------------------------
[[Page 56958]]
Consistent with Executive Order 11988, as amended, and the Revised
Guidelines, CISA requirements will change as the available and
actionable data change. The MitFLG in consultation with the Federal
Interagency Floodplain Management Task Force (FIFM-TF) will reassess
FFRMS annually, after seeking stakeholder input, and provide
recommendations to the WRC to update FFRMS, including the FVA, if
warranted based on accurate and actionable science that takes into
account changes to climate and other changes in flood risk. The WRC
shall issue an update to FFRMS at least every 5 years.\162\
---------------------------------------------------------------------------
\162\ Section 4, Executive Order 13690, 80 FR 6425 (Feb. 4,
2015).
---------------------------------------------------------------------------
Comments: Three commenters requested that FEMA clarify how it will
determine that CISA data are available and actionable when determining
the FFRMS floodplain. One of the commenters asked whether CISA data
availability was dependent on FEMA mapping using CISA data. Another
commenter requested clarity on how CISA would be assessed. The
commenter noted the CISA data must be ``existing'' and both
``available'' and ``actionable,'' and stated this implied that entities
proposing a project were only obligated to rely on information that was
already existing, available, and actionable, which was inconsistent
with the rest of the rule that focused on creating project-specific
assessments.
FEMA Response: Data availability is not dependent on the
development of FEMA regulatory mapping products (such as effective
Flood Insurance Rate Maps [FIRMs]) utilizing CISA data. The Revised
Guidelines require agencies to utilize the ``best available and
actionable science.'' The Revised Guidelines state that in this
context, ``best-available'' generally refers to science, data or
information that is:
Transparent--clearly outlines assumptions, applications,
and limitations;
Technically credible--transparent subject matter or more
formal external peer review, as appropriate, of processes and source
data;
Usable--relevance and accessibility of the information to
its intended users;
Legitimate--perceived by stakeholders to conform to
recognized principles, rules, or standards. Legitimacy might be
achieved by existing government planning processes with the opportunity
for public comment and engagement.\163\
---------------------------------------------------------------------------
\163\ See Revised Guidelines at pgs. 16-17.
---------------------------------------------------------------------------
The Revised Guidelines further state that actionable science
includes theories, data, analyses, models, projections, scenarios and
tools that are:
Relevant to the decision under consideration;
Reliable in terms of its scientific or engineering basis
and appropriate level of peer review;
Understandable to those making the decision;
Supportive of decisions across wide spatial, temporal, and
organizational ranges, including those of time-sensitive operational
and capital investment decision-making;
Co-produced by scientists, practitioners, and decision-
makers, and meet the needs of and are readily accessible by
stakeholders.
These concepts of best-available and actionable science are further
described in Part II, Step 1 of the Revised Guidelines, in the context
of the various approaches for determining a floodplain and in Appendix
H of the Revised Guidelines specifically as it relates to the
CISA.\164\
---------------------------------------------------------------------------
\164\ See Revised Guidelines at pgs. 16-17.
---------------------------------------------------------------------------
As previously explained, the FFRMS CISA State of the Science Report
\165\ contains an up-to-date review and update of the best-available,
actionable science that can support application of the CISA, and is the
basis of the interagency implementation and supporting tools such as
the FFRMS Job Aid.\166\ FEMA will initially rely on the methodology in
the FFRMS Job Aid to determine the FFRMS floodplain when implementing
this final rule.
---------------------------------------------------------------------------
\165\ Available at https://www.whitehouse.gov/wp-content/uploads/2023/03/Federal-Flood-Risk-Management-Standard-Climate-Informed-Science-Approach-CISA-State-of-the-Science-Report.pdf?trk=public_post_comment-text (last accessed Jan. 24,
2024), https://www.fema.gov/floodplain-management/intergovernmental/white-house-flood-resilience-interagency-working-group (last
accessed Jan. 24, 2024), and posted to the public docket for this
rulemaking at https://www.regulations.gov/document/FEMA-2023-0026-0007.
\166\ See https://www.fema.gov/sites/default/files/documents/fema_ffrms-floodplain-determination-job-aid.pdf (last accessed Jan.
24, 2024) and posted to the public docket for this rulemaking at
https://www.regulations.gov/document/FEMA-2023-0026-0004.
---------------------------------------------------------------------------
FEMA disagrees with the commenter that requiring CISA data be
available and actionable is inconsistent with the rest of the rule. The
8-step process is action-specific, and the floodplain determination is
made based on the location of the action, but the data to determine the
floodplain at that location must be available and actionable for CISA
to be utilized. FEMA's FFRMS policy further defines where CISA is
applicable.
Comments: FEMA received comments regarding the service life of
proposed actions and how the agency would calculate the service life of
actions. One commenter suggested FEMA provide guidelines on how to
determine an appropriate period. Another commenter noted FEMA used a
default 50-year lifecycle analysis that would not be appropriate for
all actions and requested FEMA provide information on how the 50-year
lifecycle timeline was determined, as well as guidelines on how to
determine the appropriate lifecycle on a case-by-case basis.
FEMA Response: FEMA's analysis of the rule's benefits relied upon a
report defaulting to a 25-year and 50-year lifecycle for all actions.
However, when making floodplain determinations, FEMA intends to
determine the appropriate service life on a case-by-case basis for each
action. This will ensure that FEMA evaluates floodplain hazards over
the appropriate lifecycle for each action. The FFRMS Job Aid provides
additional information on service life and how FEMA will make those
individual determinations.\167\
---------------------------------------------------------------------------
\167\ See FFRMS Job Aid, pg. 14.
---------------------------------------------------------------------------
FEMA's RIA used the 2022 report titled ``A Benefits Analysis of
Increased Freeboard for Public and Nonresidential Buildings in Riverine
and Coastal Floodplains,'' (``2022 report'') in its analysis of
benefits. The 2022 report calculated benefits for increased freeboard
over 25-year and 50-year useful lives under a variety of climate change
scenarios.\168\ FEMA's analysis considered the benefits of the rule
assuming a 50-year useful life.
---------------------------------------------------------------------------
\168\ The FEMA BCA Toolkit recommends using a 50-year project
useful lift for public buildings and a 25-year project useful life
for nonresidential buildings.
---------------------------------------------------------------------------
Comment: A commenter stated some states, such as California, had
guidelines on sea level rise and those guidelines were inconsistent
with the CISA +5 feet option discussed in the rule's regulatory impact
analysis. The commenter stated such an elevation requirement would be
overbuilt per those State guidelines. The commenter stated that CISA
would be overly conservative for many locations, because of what the
commenter characterized as CISA's one-size-fits-all approach.
FEMA Response: FEMA's regulatory impact analysis utilizes an
assumption of +5 feet for CISA as an analysis point. The +5 feet is an
assumption because FEMA does not currently have detailed enough data to
estimate the average CISA level within the United States based on
currently available CISA data and the additional CISA data that will
[[Page 56959]]
continue to become available over time. However, CISA is not a one-
size-fits-all approach. FEMA notes the FFRMS Floodplain Determination
Job Aid indicates the CISA method is recommended for actions along low-
lying coastal shorelines on the Atlantic and Gulf Coasts. For Pacific
coasts and other coasts with bluffs, FEMA may initially use the FVA
approach.
SLTTs can provide input into the determination. Pursuant to 44 CFR
9.11(d)(6), a more restrictive Federal, State, or local standard will
be used, including local CISA data and methods that have been adopted
by a community for use in floodplain management, as long as such data
result in a more restrictive standard.
FEMA's FFRMS policy is not a one-size-fits-all approach; rather,
the agency's policy approach is flexible to address criticality of the
action being taken, data availability based on the location of the
action, and equity concerns. FEMA is not codifying the specific climate
scenarios to be used as part of the CISA analysis. As previously
explained, FEMA is relying on interagency tools to determine CISA flood
elevations and corresponding horizontal floodplains. FEMA will
initially implement this final rule using the FFRMS Job Aid that
published in the public docket associated with this rulemaking along
with the proposed rule. The FFRMS Job Aid is also on FEMA's
website.\169\
---------------------------------------------------------------------------
\169\ See https://www.fema.gov/sites/default/files/documents/fema_ffrms-floodplain-determination-job-aid.pdf (last accessed Jan.
24, 2024) and posted to the public docket for this rulemaking at
https://www.regulations.gov/document/FEMA-2023-0026-0004.
---------------------------------------------------------------------------
Comment: The same commenter stated that when designing bridges and
embankments, the CISA approach considers impacts from projected land
cover/land use changes, long-term erosion, and other processes that may
alter flood hazards over the lifecycle of the Federal investment. The
commenter asked how the estimates for long-term erosion and scour would
be determined. This commenter further stated the outcomes from these
estimates were subject to uncertainty, resulting in overdesign and
greatly reducing the likelihood of the CISA data actually occurring.
FEMA Response: FEMA's FFRMS policy provides details on how FEMA
will implement FFRMS for facilities. This analysis is completed on a
case-by-case basis and may require the services of a professional
engineer, as appropriate, consistent with FEMA program requirements.
More information on consideration of flood characteristics such as
erosion and scour can be found in the Revised Guidelines.\170\
---------------------------------------------------------------------------
\170\ See Revised Guidelines pg. 23 for information on flooding
characteristics and Appendix H of the Revised Guidelines for
information on the CISA, pgs. 20-22.
---------------------------------------------------------------------------
Whether CISA data are available and/or actionable will depend in
part upon the location of the action being taken. FEMA believes the
policy approach detailed in the agency's FFRMS policy is sufficiently
certain for FFRMS implementation. As detailed in the FFRMS policy, FEMA
will use the CISA where such data is available and actionable. FEMA is
relying on interagency tools to determine CISA flood elevations and
corresponding horizontal floodplains. Where the CISA data are not
available and actionable, the agency will leverage either the FVA or
0.2PFA depending on the criticality of the action and data
availability. Where the CISA data are available and actionable, the
CISA floodplain must be at least as restrictive as the 1 percent annual
chance flood elevation or 0.2PFA, again depending on the criticality of
the action. In this way, FEMA has addressed equity concerns in the
policy approach, specifically to mitigate the likelihood of over- and
under-building. FEMA believes that allowing for a lower standard for
non-critical actions helps address concerns related to overbuilding.
Selecting the lower approach for non-critical actions will still result
in a higher level of resilience than the current requirements under
part 9 while also taking equity and cost-effectiveness considerations
into account.
CISA Applicability
Comment: A commenter requested FEMA apply the CISA to all of the
agency's mapping and map revision processes. The commentor wrote that
letters of map amendment (LOMAs) and letters of map revision-based on
fill (LOMR-Fs) essentially allowed FEMA to piecemeal exempt properties
and stated the combination of Executive Orders and statutes required
FEMA to build a robust and well-informed mapping program to guide
development away from floodplains. The commenter stated the exclusion
of LOMAs and LOMR-Fs from FFRMS created an exception that would swallow
the rule.
FEMA Response: FEMA appreciates the commenter's support of the CISA
and understands the commenter's concerns regarding LOMAs and LOMR-Fs.
FEMA is not making changes to the agency's NFIP mapping process with
this rulemaking or accompany FFRMS policy. The NFIP's regulations on
mapping and changes to FEMA maps are found at 44 CFR part 70 et seq.
Further, the proposed changes to part 9 do not affect implementation of
the NFIP's floodplain management regulations. Those regulations are
found at 44 CFR part 59 et seq. The framework that FEMA uses in part 9,
including the revised definition of floodplain applicable to actions
subject to the FFRMS under this rule, is distinct from NFIP mapping.
FEMA believes that the flexibility outlined in 44 CFR 9.7 and the
practice of best available information will allow the application of
part 9 to adjust to any future change made in the NFIP mapping process.
CISA and Equity Considerations
Comment: A commenter requested FEMA consider inequities in access
to the best available climate science as some communities may not have
access to the CISA data. The commenter acknowledged FEMA's proposed
alternatives to the CISA but requested the agency consider how this
rule would unintentionally exacerbate inequities in flood preparedness
and safety across the country and how FEMA would distribute Federal
funding and other financial assistance to address these discrepancies.
FEMA Response: FEMA's revisions to part 9 reflect consideration of
the type and criticality of the action involved, the availability and
actionability of the data, and equity concerns in the implementation of
Executive Order 11988, as amended. FEMA also has an agency-wide
initiative focused on reducing barriers and increasing opportunities so
all people, including those from vulnerable and underserved
communities, can get help when they need it.\171\ FEMA notes any
increased costs are generally eligible for funding under FEMA's
assistance programs subject to cost share requirements.
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\171\ See https://www.fema.gov/emergency-managers/national-preparedness/equity (last accessed Jan. 24, 2024).
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As part of the implementation cost, FEMA will publicize the FFRMS
to public and SLTT partners, identifying what the FFRMS is and how the
agency will implement the Executive Order as amended and part 9. These
resources will help applicants applying for FEMA-funded assistance
programs. FEMA's regional offices will also provide technical
assistance in support of FFRMS implementation.
As climate science data continues to be advanced, FEMA will
continue to rely on 44 CFR 9.7, FEMA Policy 104-008-2: Guidance on the
Use of
[[Page 56960]]
Available Flood Hazard Information,\172\ and the Revised Guidelines in
determining whether CISA and flood hazard data is available and
actionable. Appendix H of the Revised Guidelines and the CISA FFRMS
State of the Science Report provide an overview of the available and
actionable data for CISA, which is the basis for these interagency
supporting tools. The Revised Guidelines also provide an explanation of
how the FFRMS will be updated in the future. Additionally, where a
community does have access to CISA data and has adopted its use for
floodplain management, that data will be used pursuant to 44 CFR
9.11(d)(6), as long as it results in a more restrictive standard. In
this way the unique considerations of a particular community are also
taken into account.
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\172\ Available at https://www.fema.gov/sites/default/files/2020-04/Available_Flood_Hazard_Information_Policy_104-008-2.pdf
(last accessed Mar. 12, 2024).
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2. FVA
Comment: A commenter stated FEMA should be prepared to reassess the
use of 2 and 3 feet of freeboard in the FVA according to the latest
climate science. The commenter requested the FFRMS should explicitly
allow this type of reassessment to take place without rulemaking.
FEMA Response: The FVA is an alternative approach to the CISA under
the FFRMS. FEMA cannot independently revise the FFRMS. The MitFLG in
consultation with the FIFM-TF will reassess the FFRMS annually, after
seeking stakeholder input, and provide recommendations to the WRC to
update the FFRMS, including the FVA, if warranted based on accurate and
actionable science that takes into account changes to climate and other
changes in flood risk. The WRC shall issue an update to the FFRMS at
least every 5 years.\173\
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\173\ Section 4, Executive Order 13690, 80 FR 6425 (Feb. 4,
2015).
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FEMA appreciates the intent behind the comment, namely that the
agency should implement the FFRMS in a way that allows for
reassessments that account for changes in climate science. FEMA has
ensured that its implementation of the FFRMS will allow for such
updates. Specifically, in this final rule, FEMA will implement the
FFRMS by adopting the flexible framework identified in Executive Order
11988, as amended by Executive Order 13690, in its entirety, instead of
mandating a particular approach in its regulations and will provide
additional guidance (more readily capable of revisions and updates)
that addresses which approach FEMA would generally use for different
types of actions. Consistent with Executive Order 11988, as amended,
and the Revised Guidelines, the CISA requirements will change as the
available and actionable data change and FEMA will similarly update its
guidance, as appropriate, to account for such changes.
3. 0.2PFA
Comments: Commenters asked questions about the 0.2PFA and how FEMA
would implement the approach. A commenter expressed support for the use
of the 0.2PFA as an effective alternative to the CISA while technology
and capabilities to implement CISA are scaling to a nationwide level.
At the same time, the commenter recommended that FEMA allow for the
flexibility to use the most protective and up-to-date science in
coastal regions or where higher quality data and analytics are
available. The same commenter wrote that FEMA should continue educating
the public regarding flood risk from flood events that could affect
areas beyond the 0.2 percent annual chance floodplains. The commenter
stated that during the past two decades, many storm events of a
magnitude greater than a 0.2PFA event have occurred, such as the 2010
Nashville flood and the 2017 inland flood induced by Hurricane Harvey.
The commenter stated that while reliance on the 0.2PFA would
significantly reduce flood risk in comparison to reliance upon the 1
percent annual chance floodplain, FEMA should not be satisfied that
this would be sufficient. The commenter also requested FEMA include
land surface flooding. The commenter also recommended the flood
mitigation standard for critical infrastructure (such as subway
systems, metropolitan wastewater treatment facilities, and others) be
different and higher than those for non-critical. Another commenter
requested FEMA account for the area of elevation that was above or
below sea level to plan for implementation of the 0.2PFA.
FEMA Response: FEMA's policy approach provides flexibility. As
explained in the FFRMS policy, FEMA will use the CISA to determine the
floodplain where that data is available and actionable. Where the CISA
data is not available or actionable, FEMA will utilize either the FVA
or 0.2PFA depending on the criticality of the action and data
availability. FEMA notes there is no requirement in the FFRMS or the
Revised Guidelines to select the higher approach when not using the
CISA, as FFRMS is a resilience standard. ``When an agency is not using
the Climate-informed Science Approach in riverine flood hazard areas,
the agency may select either the Freeboard Value Approach or the 0.2-
percent-annual chance elevation, as appropriate, and is not required to
use the higher of the two.'' \174\
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\174\ See Revised Guidelines, pg. 57.
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FEMA will continue to rely on 44 CFR 9.7, FEMA Policy 104-008-2:
Guidance on the Use of Available Flood Hazard Information,\175\ and the
Revised Guidelines in determining whether CISA and flood hazard data is
available and actionable. FEMA will use the best available information
in making the floodplain determination under part 9, and the best
available information may include information that is non-regulatory or
FEMA preliminary flood hazard data. To be designated as the best
available information, it must be at least as restrictive as
information provided by effective FIRMs. Pursuant to 44 CFR 9.11(d)(6),
a more restrictive Federal, State, or local standard will be used and
this includes the use of local CISA data and methods that have been
adopted by a community for use in floodplain management, as long as
such data results in a more restrictive standard.
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\175\ Available at https://www.fema.gov/sites/default/files/2020-04/Available_Flood_Hazard_Information_Policy_104-008-2.pdf
(last accessed Mar. 12, 2024).
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To clarify, FEMA is not relying on the 1 percent annual chance
floodplain in the FFRMS approaches. Rather, FEMA is relying on the
CISA, FVA, or 0.2PFA. FEMA's FFRMS policy clarifies the agency will use
the higher of the FVA or 0.2PFA for critical actions when CISA data is
not available or actionable. FEMA will continue to utilize the 1
percent annual chance floodplain under part 9 only for those actions
that are not subject to the FFRMS and are considered non-critical
actions.
FEMA has considered and will continue to consider flooding
characteristics such as land surface flooding consistent with Sec.
9.7. FEMA's FFRMS policy also emphasizes whether the action is a
critical action as one of the factors to consider when conducting the
analysis as to the approach to utilize when CISA data is not available
or actionable.
Regarding the commenter's concerns about elevation, the interagency
tools FEMA will use to determine the 0.2PFA, as well as CISA and FVA,
will account for ground elevation.
Comment: One commenter wrote only 20 percent of the country had
detailed horizontal floodplain boundaries of the 0.2 percent annual
chance floodplain
[[Page 56961]]
and that the elevation determination was also important given that some
flood depths could be lower in the 0.2 annual chance floodplain than in
the 1 percent annual chance floodplain. A commenter stated the lack of
comprehensive elevation information for the 0.2PFA would cause
confusion among stakeholders and applying FFRMS without accounting for
distinct elevation profiles undermined the practicality and success of
the policy. Another commenter supported utilizing the 0.2PFA and FVA
when the CISA data was not available and not actionable. The commenter
noted wave modeling should be included when applying the 0.2PFA and
FEMA had not regularly produced maps that incorporate wave modeling.
The commenter requested FEMA regularly include wave modeling in its 0.2
percent annual chance flood maps.
FEMA Response: As explained above, FEMA's FFRMS policy identifies
data availability as a factor in determining the FFRMS approach to be
used for a specific action. FEMA recognizes data availability of the
0.2 percent annual chance floodplain, as well as technical
considerations relating to how wave action may be incorporated, can be
challenges in implementing the 0.2PFA. In coastal areas, the Revised
Guidelines note Federal agencies should use the FVA as the minimum
elevation when not using the CISA if the 0.2 percent annual chance
flood information depicted on FEMA's regulatory products considers
storm-surge hazards but not wave action, and wave action data cannot be
obtained from other sources.
As the commenter notes, when the CISA is not available and the
0.2PFA is used in coastal areas, the 0.2PFA should consider wave
action. As the Revised Guidelines state, before using the 0.2PFA in
that situation, an analysis should be conducted of coastal flood
hazards at the site that incorporates the local effects of wave action,
scour and erosion, wave run-up, and overtopping.\176\ In some
instances, the FEMA 0.2 percent annual chance flood elevation, which
does not consider wave action, will be lower than the current BFE or
the FVA. As noted in the Executive Summary of this preamble, FEMA
edited the agency's proposed FFRMS policy to clarify that FIRMs and
Federal Insurance Studies (FIS) provide 1 percent annual chance flood
elevations including wave action in coastal areas; however, the 0.2
percent annual chance flood elevations generally are stillwater
elevations that do not account for the effects of wave action. To
emphasize the importance of this for non-critical actions in
particular, the FFRMS policy wording has been clarified and relocated
to Section C.3.a, stating that when the lower of the 0.2PFA or FVA is
used, the FVA flood elevation must be used in those instances where the
0.2-percent-annual-chance flood elevation does not account for the
effects of wave action.\177\ For critical actions, the policy approach
is to use the higher of the FVA or 0.2PFA, which would avoid relying on
0.2PFA in situations where the 0.2PFA elevations would be lower.
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\176\ See Revised Guidelines, pg. 57.
\177\ See section C.3.a note 13, pg. 4.
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4. Fourth Approach
Comment: A commenter stated the fourth approach listed in the rule
was a ``hedge'' and resulted in inexcusable operational uncertainty to
the FFRMS. The commenter stated the public would struggle to understand
the appropriate standard on an annual basis given this approach.
Another commenter stated the fourth approach was a ``safety net'' and
consistent with the other commenter, stated the approach amplified
operational uncertainty within FFRMS rather than addressing it.
FEMA Response: FEMA disagrees that the fourth approach in the
regulation provides additional uncertainty for the public. This
approach is provided in the Revised Guidelines, and FEMA would provide
notice to the public of any such approach and the adoption of that
approach consistent with Executive Order 11988, as amended.
5. Alternatives to FFRMS Approaches
Comment: One commenter suggested that cost-benefit analysis could
serve as an alternative to using the FFRMS approaches. The commenter
stated cost-benefit analysis informed by risk could be scaled to the
circumstances of decisions and would achieve better results than
applying error-prone arbitrary standards. The commenter stated that
benefits and costs can be broadly conceived to include more than values
reflected in market transactions. The commenter wrote that FEMA applied
cost-benefit analysis in a partial way to its hazard mitigation program
only and asked how not leveraging a cost-benefit analysis but instead
applying the FFRMS approaches would result in net Federal resource
savings.
FEMA Response: As an initial matter, FEMA notes that establishing
the floodplain for each project on the basis of individualized cost-
benefit assessments would potentially be inconsistent with the
commenter's stated preference for predictability and reduced
uncertainty (as reflected in the commenter's objection to the CISA
standard). For instance, the commenter's proposal could require
individualized flood risk assessments that would make it challenging
for private parties to predict the applicable floodplain prior to
engaging with FEMA. In addition, in at least some cases, the
commenter's proposed approach would call for consideration of relevant
data and science in order to understand the potential costs and
benefits of building to different levels of resilience. Although as
reflected throughout this response and preamble, FEMA shares the
commenter's sensitivity to cost and preference to limit unnecessary
expenditures to the extent possible, FEMA does not believe that the
approach suggested by the commenter is necessarily more likely to be
predictable or administrable, or to maximize net benefits.
While not all of FEMA's programs are statutorily required to be
cost-effective, FEMA has consistently leveraged cost-benefit analysis
and will continue to do so along with minimum standards for floodplain
management across the agency's programs to provide for Federally funded
projects that are both cost-effective and result in more resilient
communities.
In its NPRM and proposed policy, FEMA explained how the agency
considered cost along with data availability, criticality of the
action, and equity in establishing a flexible framework for FFRMS
implementation. Consistent with the Revised Guidelines, FEMA's
preferred approach is the CISA, but the FFRMS policy explains the CISA
must be available and actionable and where it is not, the FVA or 0.2PFA
will be utilized depending on the criticality of the action and
availability of data.
FEMA believes the benefits of preventing property damage and
potentially saving lives justify the costs of the rule. These benefits
are a result of the improved protection of structures due to increased
elevation and floodproofing standards in FEMA's implementation of the
FFRMS. This rule will help to ensure that Federal investments are
better protected from flood damage, and the natural values of
floodplains are preserved. If, in the future, the commenter were to
identify a specific cost-benefit methodology that warranted adoption
via the process outlined in the Executive Order, FEMA could in
principle pursue such an option.
Comments: Some commenters recommended FEMA adopt specific building
codes and design standards as part of this rulemaking. One commenter
[[Page 56962]]
stated FEMA's rule was consistent with ASCE Policy Statement 421. The
commenter recommended FEMA adopt both the current 2022 edition of ASCE
7 as well as Supplement #1 and Supplement #2 for the Flood Chapter, and
the upcoming revision to ASCE 24. Another commenter recommended FEMA
require up-to-date editions of the International Residential Code (IRC)
and International Building Code (IBC) to ensure the FFRMS incorporates
the most stringent flood provisions for Federally assisted construction
in flood zones. Another commenter also recommended FEMA specifically
adopt a reference to the ANSI/FM Approvals 2510 standard for
floodproofing/flood mitigation products, similar to the U.S. Department
of Housing and Urban Development (HUD)'s proposal to allow
floodproofing of non-residential areas below the FFRMS floodplain
elevation in their NPRM.
FEMA Response: FEMA appreciates the commenter's concerns and notes
the agency does implement specific codes and standards through grant
program policies and requirements.\178\ However, the scope of this rule
is limited to implementation of FFRMS consistent with Executive Order
11988, as amended, and the Revised Guidelines; FEMA did not propose to
adopt specific building codes and standards in the NPRM. FEMA may,
however, clarify the use of such standards through additional guidance.
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\178\ For example, FEMA Recovery Interim Policy 104-009-11
Version 2.1, ``Consensus-Based Codes, Specifications and Standards
for Public Assistance'' (December 20, 2019) requires ``application
of the latest nationwide consensus-based codes, specifications and
standards that incorporate hazard resistance for PA funded
projects'' including buildings, electric power, roads, bridges,
potable water, and wastewater. Available at https://www.fema.gov/sites/default/files/2020-07/fema_DRRA-1235b-public-assistance-codes-standards-interim-policy.pdf (last accessed Jan. 24, 2024). HMA also
specifically references ASCE 24 and ASCE 7 in the HMA Program and
Policy Guide available at https://www.fema.gov/grants/mitigation/hazard-mitigation-assistance-guidance (last accessed Jan. 24, 2024).
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FEMA adopted a Building Codes Strategy \179\ in March 2022 that
focuses on leveraging partnerships to promote current hazard resistant
building codes; understanding stakeholder needs to identify
opportunities that advance building code adoption and enforcement;
amplifying climate science messaging to increase public demand for
building codes and standards; and targeting building code adoption
outreach to the most vulnerable communities to achieve a more resilient
nation. FEMA believes the changes made in this final rule and the FFRMS
policy will further this strategy without mandating specific codes and
standards in the regulatory text. FEMA will continue to review and
update the agency's policies and guidance regarding codes and standards
to ensure the agency is promoting use of the standards consistent with
FEMA program requirements.
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\179\ See ``Building Codes Strategy'' March 2022 available at
https://www.fema.gov/sites/default/files/documents/fema_building-codes-strategy.pdf (last accessed Jan. 24, 2024).
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FEMA appreciates the commenter's request that the agency mirror
HUD's proposal to allow floodproofing of non-residential structures
below the FFRMS flood elevation. FEMA already allows for floodproofing
of non-residential structures below the floodplain in 44 CFR 9.11(d)(3)
and will continue to allow floodproofing below the FFRMS flood
elevation. No changes to the regulatory text are required to achieve
this result.
H. FEMA's FFRMS Policy Approach
1. Overall
Comments: Commenters offered support for the edits proposed to
Sec. 9.7 and the accompanying proposed FFRMS policy document to
implement FFRMS. Commenters also stated specific support for FEMA's
policy decision to prioritize the use of CISA when determining the
FFRMS floodplain for actions subject to the FFRMS. Commenters were also
generally supportive of FEMA's approach to utilize either the FVA or
0.2PFA where CISA data was not available or not actionable.
FEMA Response: FEMA appreciates the commenter's agreement with the
general policy approach detailed in FEMA's FFRMS policy and the agency
is finalizing that policy approach with the publication of this final
rule. FEMA notes the revisions made to part 9 apply only to FEMA
projects and not all Federally funded projects as some commenters
suggested. All Federal agencies will utilize the Revised Guidelines for
their own FFRMS implementation.
Comment: One commenter wrote in support of the revisions to Sec.
9.7. The commenter stated that a recent TMAC report indicated that
existing 1 percent and 0.2 percent annual chance floodplains were
insufficient for informing land use practices and stated the use of
CISA aligned with TMAC's principle to use a climate-informed map for
floodplain management, separate from the 1 percent annual chance map
used for NFIP mandatory purchase and other regulatory requirements.
FEMA Response: FEMA appreciates the commenter's support of the
agency's preferred approach and the clarifications made in Sec. 9.7 as
part of this final rule. Executive Order 11988, as amended, and the
FFRMS reinforce the importance of avoiding adverse impacts associated
with actions in or affecting a floodplain and minimizing potential harm
if an action must be located in a floodplain. As amended, Executive
Order 11988 directs agencies to use a higher vertical flood elevation
and corresponding horizontal floodplain than that of the base flood for
Federally funded projects to address current and future flood risk and
help ensure that projects last as long as intended. FEMA appreciates
the commenter's reference to the recent TMAC recommendations, but notes
TMAC recommendations are not binding on FEMA and relate directly to the
NFIP, not necessarily to part 9 and this final rule.
Comment: One commenter was not supportive of FFRMS, stating that a
national ``one-size-fits-all'' approach that lacked flexibility to
address specific regional and local circumstances and needs and a
uniform strategy would not adequately address the nuanced and varied
nature of flood dynamics. The commenter wrote that without tailored
considerations for regional variations, FFRMS overlooked critical
factors, risking inconsistency and inefficiency in flood management
efforts.
FEMA Response: The FFRMS is a resilience standard with flexibility
in the approach selected to meet the standard. FEMA's FFRMS policy
explains how the agency selects the FFRMS approach to use for each
project and is not a ``one-size-fits-all'' policy. The FFRMS policy is
flexible to address data availability based on the location of the
action, criticality of the action being taken, and equity concerns and
allows consideration of regional variations and community concerns.
SLTTs can provide input into the floodplain determination. Pursuant
to 44 CFR 9.11(d)(6), a more restrictive Federal, State, or local
standard will be used. This includes the use of local CISA data and
methods that have been adopted by a community for use in floodplain
management, as long as such data result in a more restrictive standard.
FEMA values additional input from SLTT partners and the public
throughout the 8-step process.
Comment: Another commenter also opposed FFRMS, stating that the
approaches based on elevation and areal extent determined by flood
elevations across the watershed were subject to availability heuristic
bias. The commenter stated that higher is not always better and that
FFRMS did not consider whether the standard was prone to error and
therefore introduced
[[Page 56963]]
new risks, including the risk that FFRMS would impose more costs than
it achieves in benefits. The commenter stated FEMA acknowledged the
proposed standard would make errors and, in some cases, imposed costs
greater than anything it prevented or saved. The commenter recommended
that FEMA test its new standard in proposed use cases to determine
where the standard would make errors. The commenter recommended that
where the probability and consequences of errors from using the
standard were significant, the agency should resort to detailed cost-
benefit analysis. The commenter recommended that the FFRMS be
formulated with reference to alternatives and cost-benefit analysis,
stating the public deserves some clarity about when FFRMS applies and
when it did not.
FEMA Response: FEMA disagrees with the commenter that the agency is
assuming higher is universally better. There is no requirement in the
FFRMS or the Revised Guidelines to select the most restrictive
standard, as FFRMS is a resilience standard. The Revised Guidelines
state ``[w]hen an agency is not using the Climate-informed Science
Approach in riverine flood hazard areas, the agency may select either
the Freeboard Value Approach or the 0.2-percent-annual chance
elevation, as appropriate, and is not required to use the higher of the
two.'' \180\ In some instances, building to a higher elevation may lead
to overbuilding and thus not be the most cost-effective, equitable
approach particularly for non-critical actions. FEMA believes its
proposed approach to use the CISA, and to utilize the lower of the FVA
or 0.2PFA where the CISA is not available and actionable, reflects
appropriate sensitivity to cost and risk.
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\180\ See Revised Guidelines, pg. 57.
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Further, the revisions to part 9 do not change FEMA's long-standing
requirement as part of implementing Executive Order 11988, as amended,
to only perform or fund actions within or affecting floodplains if
those actions are the only practicable alternative. Through the 8-step
process, FEMA will consider alternative locations, alternative actions,
nature-based solutions, and the no action alternative under the
practicability analysis. If there is no practicable alternative, FEMA
will perform or fund the action and will minimize any adverse impacts
when doing so.
Regarding clarity on the application of FFRMS, FEMA defines
``action subject to the FFRMS'' as ``any action where FEMA funds are
used for new construction, substantial improvement, or to address
substantial damage to a structure or facility.'' The FFRMS applies to
grants for projects funding the new construction, substantial
improvement, or repair of substantial damage under FEMA programs such
as IA, PA, and HMA programs, and grants processed by FEMA's GPD. FFRMS
applies only to Federal actions and this rule only applies to those
actions FEMA takes using Federal funding. This rulemaking is generally
not expected to negatively impact individuals and their ability to pay.
Where applicable, any increased costs associated with this rulemaking
would be subject to cost share requirements for FEMA's programs.
FEMA also disagrees with the commenter that the agency acknowledged
the FFRMS would create errors and would impose costs greater than
anything the standard would prevent or save. FEMA believes the benefits
of preventing property damage and potentially saving lives justify the
costs of the rule. These benefits are a result of the improved
protection of structures and facilities due to increased elevation and
floodproofing standards in FEMA's implementation of the FFRMS. This
rule will improve the resilience of Federal investments to be better
protected from flood damage and promote preservation of the natural and
beneficial values of floodplains.
FEMA believes the regulatory impact analysis was sufficiently
detailed to analyze the FFRMS approaches in general, as the RIA itself
was not intended to analyze the costs and benefits of applying the
FFRMS standards to specific use cases. FEMA conducted an analysis to
create a range of the potential impacts. FEMA does not know how many
projects will be subject to the FVA, 0.2PFA, or CISA requirements over
the 10-year period as FEMA anticipates it to continually change.
Therefore, FEMA has analyzed the impact of FVA, 0.2PFA and CISA for
each of the programs, PA, IA, and HMA as if each were the only FFRMS
expansion option. Evaluation of the practicability of certain FFRMS
standards in the context of specific use cases occurs as part of the 8-
step process, and to the extent that FEMA finds certain approaches to
be incompatible with practicable implementation in certain cases, FEMA
may issue further guidance on the topic. In general, however,
commenters did not identify categories of actions for which application
the FFRMS approaches appears likely to be particularly problematic.
While FEMA could not quantify the costs and benefits of several
aspects of this rule, FEMA was able to quantify the number of
structures and facilities that would be impacted by the rule. FEMA was
transparent about its inability to quantify the costs and benefits of
several aspects of the rule. FEMA provided a literature review of
relevant benefits that could be realized from flood mitigation, an
analysis of benefits quantified for the rule, and a qualitative
description of additional benefits that could be realized from the
rule. FEMA conducted a quantitative cost-benefit analysis based on the
data available.
2. Application of the FFRMS Approaches for Critical and Non-Critical
Actions
Comments: Commenters were generally supportive of FEMA's policy
approach to utilize the higher of the FVA or 0.2PFA for critical
actions where CISA data was not available and/or actionable. Some of
these commenters, however, expressed concerns with utilizing the lower
of the FVA or 0.2PFA for non-critical actions where CISA data was not
available and not actionable. Several of these commenters inaccurately
stated policy positions on the FFRMS approaches selected by other
Federal agencies for non-critical actions.
Commenters requested that FEMA adopt the higher of the FVA or
0.2PFA for non-critical actions where CISA data was not available and
not actionable. Commenters stated that FEMA's policy decision to
utilize the lower standard would undermine the urgent need to design
development proposals to a more resilient standard and minimize overall
impacts to the floodplain. In response to FEMA's statements in the NPRM
regarding concerns with overbuilding and inequitable outcomes that may
not be cost-effective, a commenter noted that FEMA has consistently
advocated for states and localities to embrace stricter standards such
as updated building codes that can have similar cost implications.
Commenters also wrote that upfront investments in resilient development
produced significant cost savings to communities in the long run and
stated that the cost of construction was not the only consideration for
costs, particularly for housing. These commenters requested FEMA
consider the higher standard for non-critical actions, stating that the
long-term benefits would outweigh the costs.
FEMA Response: As explained above, there is no requirement in the
FFRMS or the Revised Guidelines to select the most restrictive
standard, as FFRMS is
[[Page 56964]]
a resilience standard. The Revised Guidelines state ``[w]hen an agency
is not using the Climate-informed Science Approach in riverine flood
hazard areas, the agency may select either the Freeboard Value Approach
or the 0.2-percent-annual chance elevation, as appropriate, and is not
required to use the higher of the two.'' \181\ While the approach the
commenters suggested would ensure that applicants were building all
actions to the most protective level where CISA data is not available,
this approach may lead to overbuilding and thus not be the most cost-
effective, equitable approach particularly for non-critical actions.
FEMA believes the agency's approach is sufficiently protective of all
actions and would be less expensive and complex to administer and
implement than the commenters' approach.
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\181\ See Revised Guidelines, pg. 57.
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FEMA did consider the long-term costs and benefits of the
rulemaking and policy and does not agree with the commenters that
FEMA's policy approach would result in inequities. Rather, FEMA
believes the policy approach is appropriate as it will help ensure
communities can rebound quickly and effectively from a disaster.
Comments: Other commenters requested FEMA require the use of the
more protective standard for non-critical actions to better align with
HUD's proposed rule to implement the FFRMS. Several of those commenters
stated that aligning with HUD's approach would reduce conflicts and
delays. One commenter stated that FEMA's approach to use a lower
elevation for non-critical projects facilitated a beneficial benefit/
cost ratio. That commenter stated the higher standard should not be
overly burdensome and consistent with another commenter noted the cost
of construction was not the only consideration for costs, particularly
for housing.
FEMA Response: As explained above, there is no requirement in the
FFRMS or the Revised Guidelines to select the most restrictive
standard, as FFRMS is a resilience standard. While the approach the
commenter suggested would ensure applicants were building all actions
to the most protective level where CISA data is not available, this
approach may lead to overbuilding and thus not be the most cost-
effective, equitable approach, particularly for non-critical actions.
FEMA believes the agency's approach is sufficiently protective of all
actions and would be less expensive and complex to administer and
implement than the commenter's approach.
While HUD's rule would require all proposed actions that require an
Environmental Impact Statement (EIS) under NEPA to define the FFRMS
floodplain using CISA, FEMA does not believe it is appropriate to
require CISA in every instance where an EIS is required. FEMA cannot
utilize CISA if CISA data is not available and actionable even if an
action requires an EIS. Where CISA data is both available and
actionable, FEMA will require CISA, including for those proposed
actions that require an EIS.
HUD proposed to use the CISA to determine the FFRMS floodplain
where the data is available and actionable. For non-critical actions
where CISA is unavailable, HUD will use the 0.2PFA. Where the 0.2PFA is
also unavailable for non-critical actions, HUD will use the FVA. For
critical actions where CISA is unavailable, HUD will use either the
0.2PFA or the FVA to determine the FFRMS floodplain, whichever results
in the larger floodplain and higher elevation. The only significant
difference between HUD's policy approach and FEMA's is that HUD will
first use the 0.2PFA for non-critical actions where it is available,
but the CISA is not, and FEMA will use the lower of the 0.2PFA and the
FVA for non-critical actions where CISA is not available.
FEMA considered requiring the use of the 0.2PFA when CISA is not
available for non-critical actions rather than the lower of the 0.2PFA
or FVA. While application of the 0.2PFA may provide a more consistent
reduction of flood risk as it is probability based, the relationship to
the FVA varies depending on topography (i.e., in some instances the
0.2PFA may result in a lower flood elevation than the FVA). Application
of only the 0.2PFA without a comparison to the FVA may result in
building to a higher resilience standard than is necessary. There could
also be equity concerns related to underbuilding or overbuilding to
this standard, as communities seek to rebound quickly and effectively
from a disaster. Data availability of the 0.2 percent annual chance
floodplain can also be a challenge in implementing the 0.2PFA, as well
as technical considerations relating to how wave action may be
incorporated. In coastal areas, the Revised Guidelines note Federal
agencies should use the FVA as the minimum elevation when not using the
CISA if the 0.2 percent annual chance flood information depicted on
FEMA's regulatory products considers storm-surge hazards but not wave
action and wave action data cannot be obtained from other sources. Only
some of those coastal areas have included wave action in the
computation of the 0.2 percent annual chance floodplain.
FEMA's FFRMS policy provides details on how FEMA will coordinate
with other agencies when implementing actions in the same area as
another Federal agency. See Section H, page 9. FEMA's interagency
consultative role in the broader implementation of the FFRMS across the
Federal government, through the agency's participation in the
Interagency Working Groups and the FIFM-TF helps ensure consistent and
effective implementation.
FEMA agrees with the commenter that equity is an important
consideration and FEMA incorporated equity into the agency's policy
approach as explained above. Equity was a primary consideration for
FEMA's policy approach, not a desire to achieve a better benefit-cost
ratio for non-critical actions as the commenter suggests. FEMA did
consider the long-term costs and benefits of the rulemaking and policy
and does not agree with the commenters that the policy approach would
result in inequities. Rather, FEMA believes the policy approach is
appropriate as it will help ensure communities seeking to rebound
quickly and effectively from a disaster may do so.
Comment: One commenter also stated using the less restrictive
standard could result in greater impacts on floodplains, ESA-listed
species, Tribal treaty rights, and realized costs to vulnerable
communities. The commenter stated using the higher standard between FVA
or 0.2PFA when CISA data was not available and not actionable would not
only prevent impacts on floodplains but would also avoid a similar
situation that required expensive infrastructure upgrades and
government liability after poorly located initial development within
floodplains.
FEMA Response: As explained above, there is no requirement in the
FFRMS or the Revised Guidelines to select the most restrictive
standard, as FFRMS is a resilience standard. While the approach the
commenter suggested would ensure applicants were building all actions
to the most protective level where CISA data is not available, this
approach may lead to overbuilding and thus not be the most cost-
effective, equitable approach particularly for non-critical actions.
FEMA believes the agency's approach is sufficiently protective of all
actions and would be less expensive and complex to administer and
implement than the commenter's approach.
A more restrictive application of the FVA or 0.2PFA would not
necessarily
[[Page 56965]]
determine whether an action will impact a protected species or critical
habitat or impact Tribal treaty rights. In step 4 of the 8-step
process, FEMA determines impacts to the floodplain which include
changes to the hydraulics and hydrology of the floodplain which informs
on potential impacts to protected species and their critical habitats.
FEMA will also perform Section 7 consultation under the Endangered
Species Act where appropriate.
3. Alternative Policy Approaches
Comments: Two commenters provided feedback on FEMA's specific
request for comment on requiring the highest elevation for all actions
regardless of criticality. One commenter noted FEMA's policy approach
was flexible and acknowledged the need to be flexible and design an
approach that would not unduly burden communities. The commenter
recommended that FEMA continue to evaluate these approaches and
consider revising and strengthening the standards if the standards
become insufficiently protective. The other commenter stated that
completing the required floodplain analysis for any one of the
approaches would be challenging on its own and to require the analysis
and consideration of all three would be costly and might not yield
results materially different from the CISA. The commenter stated that
because CISA would result in a determination of the appropriate level
of resilience to design minimization measures, it would be unnecessary
to require the use of the highest standard for all actions. The
commenter stated that such an approach would be costly and, in some
instances, would result in projects being built to higher resilience
levels than required. This commenter supported FEMA's policy approach
for critical actions as separate and apart from other actions, stating
by separating critical actions from others, FEMA would be able to
properly balance different levels of protection with minimization and
mitigation measures and cost considerations.
FEMA Response: FEMA appreciates the commenters' consideration of
the alternatives and understanding of the need for a flexible approach
balancing cost and equity considerations. FEMA agrees with the
commenter that the use of the highest standard for all actions is not
always appropriate and the FFRMS policy reflects the decision to use
the lower standard for non-critical actions. FEMA intends to continue
to evaluate the policy approach as FFRMS is implemented and will
consider future revisions as appropriate. While FEMA understands the
commenter's concern that completing the analysis for all of the
approaches for every action could be an administrative burden on the
agency, the agency does not believe that completing the analysis for
any one of the approaches is on its own too challenging. As explained
above, FEMA will use the FFRMS Job Aid to determine the FFRMS
floodplain for actions, and that tool provides the agency and
stakeholders with a methodology and process for completing the
analysis.
Comment: Two commenters wrote that FEMA artificially constrained
the agency's consideration of alternatives to just the three disclosed
regulatory approaches in the proposal and did not consider no
regulatory action as an alternative. One of the commenters added that
FEMA did not assess how private and non-Federal interests would adapt
to flooding without regulation and the no regulation alternative likely
understated flood adaptation, which resulted in the cost-benefit
analysis overstating the benefits of the three regulatory alternatives.
The commenter also wrote the true value of cost-benefit analysis is
nearly always realized when alternatives are identified that achieve
substantial benefits and at much less cost than much higher levels of
regulation. The commenter stated that FEMA could have analyzed other
alternatives, such as strategic choices of use-case subsets for
application of the various FEMA standards rather than all use-cases
being subject to CISA. The commenter further stated that the FVA or
0.2PFA entail much lower analysis costs and are probably better suited
to decisions where the costs of the structures or costs of adaptation
were lower. The commenter stated avoiding the CISA in those situations
might result in substantial cost savings.
FEMA Response: FEMA's policy approach detailed in the NPRM preamble
explains how the agency balanced consideration of costs with data
availability, criticality of the action, and equity in establishing a
flexible framework for FFRMS implementation. Consistent with the
Revised Guidelines, FEMA's preferred approach is the CISA, but the
FFRMS policy explains the CISA must be available and actionable and
where it is not, the FVA or 0.2PFA will be utilized depending on the
criticality of the action and availability of data. The CISA is FEMA's
preferred approach, as FEMA believes it has the potential to be the
best and most well-informed approach to building resilience in an
equitable manner and ensuring a reduction in disaster-related
suffering. CISA is designed to meet current and future estimates of
flood risks unique to the location and thus provide the best overall
resilience, cost effectiveness, and equity. FEMA understands the
availability and actionability of data are key factors in completing
the RIA in a consistent, equitable manner and believes data
availability and actionability will continue to advance for the CISA.
In response to the commenter's concerns that FEMA did not assess how
private and non-Federal interests would adapt to flooding without
regulation, FEMA notes that this regulation would not regulate purely
privately funded activity in the floodplain. To the extent that private
incentives exist to plan for increased flood risk, those incentives are
substantially diluted by the use of FEMA assistance to support
projects. FEMA thus did not understate private incentives to plan for
flood risk and did not overstate the benefits of the regulatory
alternatives.
FEMA's policy approach includes consideration of the alternatives
as part of the framework explained above. FEMA intends to continue to
evaluate the policy approach as FFRMS is implemented and will consider
future revisions as appropriate. Additionally, FEMA's RIA does analyze
all three approaches, as well as the no action alternative the
commenter references. Under the No Action alternative, although non-
Federal jurisdictions or private entities may continue to adapt to the
future risk of flooding over time, the current Federal standards would
remain. To the extent that private incentives exist to plan for
increased flood risk, those incentives are substantially diluted by the
use of FEMA assistance to support projects. Accordingly, such
adaptation is unlikely to occur as quickly or as fully as this rule,
leaving Federal investments at a greater risk of flooding than under
the final rule. Because of the greater risk to structures and
facilities, there is also a greater risk to life. In addition, the
natural value and function of the floodplains would be at a greater
risk of loss under the No Action alternative. However, the No Action
alternative would initially cost incrementally less than the FFRMS
approach and would result in less administrative complexity as compared
to implementing the FFRMS. Overall, based on the evaluation, the FFRMS
was selected over the No Action alternative for the benefits that it
provides to Federal investments and those who use them.
In response to the commenter's suggestion on how FEMA should have
analyzed other alternatives, such as strategic choices of use-case
subsets for
[[Page 56966]]
application of the various FEMA standards rather than all-use cases
being subject to CISA, FEMA did complete an analysis of all three
approaches. FEMA analyzed the impact of the FVA, 0.2PFA, and CISA for
each of the programs (PA, IA, and HMA) as if each approach were the
only FFRMS expansion option to create a range (see sections 7.4, 7.5,
and 7.6 in the RIA). In reality, it is likely that with FFRMS, there
will be a mix, with some projects falling under CISA, FVA, or 0.2PFA.
Therefore, the actual cost will fall somewhere within the range. FEMA
selected the CISA as the primary approach, as it is the preferred
option. CISA is designed to meet current and future estimates of flood
risks unique to the location and thus provide the best overall
resilience, cost effectiveness, and equity. As noted above, FEMA
intends to continue to evaluate the policy approach as FFRMS is
implemented and will consider future revisions as appropriate. Such
revisions could in principle include defaulting to the FVA or 0.2PFA
for smaller investments, although FEMA believes that the administrative
costs associated with implementing the CISA are likely to decline over
time.
Further, FEMA did consider the long-term costs and benefits of the
rulemaking and policy. Rather, FEMA believes the policy approach is
appropriate, as it will help ensure communities can rebound quickly and
effectively from a disaster.
4. Comments on FEMA's FFRMS Policy
Comment: A commenter requested FEMA revise the proposed principle B
in the FFRMS policy (``Avoid, to the extent possible, the long- and
short-term adverse impacts associated with occupancy and modification
of floodplains and avoid direct or indirect support of floodplain
development wherever there is a practicable alternative'') to include
additional language for FEMA to restore and preserve the natural and
beneficial functions and values of wetlands and floodplains. Another
commenter requested FEMA add a principle to the FFRMS policy and final
rule specific to the restoration and preservation of the natural and
beneficial functions and values of floodplains, and use of natural
systems, ecosystem processes, and nature-based approaches.
FEMA Response: FEMA believes the commenters' requested revisions
are unnecessary. The principles laid out in the FFRMS policy are an
abbreviated version of FEMA's policy statements found in Sec. 9.2. As
stated in new Sec. 9.2(d), FEMA shall ``[r]estore and preserve the
natural and beneficial values served by floodplains'' and ``[p]reserve
and enhance the natural values of wetlands.'' FEMA's longstanding
requirements in 44 CFR 9.11(e) outline the agency's requirements to
restore and preserve the natural and beneficial values served by
floodplains and wetlands. These current requirements meet the
commenters' concerns and remain unchanged in this rulemaking process.
Comment: A commenter requested other specific edits to the policy
document, including adding ``dry'' before floodproofing throughout the
document and replacing ``minimization standards'' with ``residential
flood resistant design and construction requirements.'' The commenter
also suggested FEMA add emphasis that nature-based solutions complement
the elevation requirements versus being alternative actions and
implementing a nature-based solution would not exempt an applicant from
the elevation requirements.
FEMA Response: FEMA believes the current language in the FFRMS
policy is sufficiently clear. FEMA believes adding ``dry'' before
floodproofing is not necessary as floodproofing is described in detail
in new Sec. 9.11(d)(3)(ii) and section G.1.c of the FFRMS policy.
Further, FEMA's policy references the use of the agency's additional
resources including FEMA's NFIP Technical Bulletins that address
floodproofing.\182\ Using the term ``minimization requirements'' is
consistent with the minimization provisions and minimization standards
in Sec. 9.11. The term ``flood risk minimization measures'' is
preferred by FEMA to avoid confusion with ``hazard mitigation'' actions
funded by FEMA.
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\182\ See FFRMS Policy, pg. 8, Section G.1.d ``FEMA guidance
provides technical information on elevation methods for new
construction and retrofitting existing structures with various types
of foundations. Guidance is available in NFIP Technical Bulletins
(1-11), FEMA P-758: Substantial Improvement/Substantial Damage Desk
Reference, FEMA P-936: Floodproofing Non-Residential Buildings, FEMA
P-348: Protecting Building Utility Systems from Flood Damage, FEMA
P-467-2: Floodplain Management Bulletin on Historic Structures,
among other FEMA publications.''
---------------------------------------------------------------------------
FEMA believes that natural features and nature-based solutions
should be considered as project alternatives and used where possible.
Where they are not practicable as an alternative on their own, natural
features and nature-based solutions may be incorporated into actions as
minimization measures. The FFRMS policy clarifies the FFRMS is a
resilience standard and where elevation may not be feasible or
appropriate, the FFRMS floodplain establishes the level to which a
structure or facility must be resilient. Resilience measures include
using structural or nonstructural methods to reduce or prevent damage;
elevating a structure; or, where appropriate, designing it to adapt to,
withstand and rapidly recover from a flood event.
Comment: The same commenter requested several clarifications. The
commenter requested FEMA clarify the requirements provided in the
policy were minimum requirements not maximums and that applicants could
exceed those requirements. The commenter requested FEMA clarify the
policy's requirements apply regardless of whether or not substantial
improvement or substantial damage is triggered and also clarify whether
a structure within an FFRMS floodplain must comply with the policy's
requirements.
The commenter also requested clarifications on--
The application of FFRMS to FEMA's benefit-cost analysis
tool used by some FEMA programs;
whether the FFRMS policy limited where certain projects
could be done, citing an example of mitigation reconstruction projects
being prohibited in V Zone; and
what constitutes a critical action and specifically
whether or not certain specific actions would be considered critical,
such as construction of new safe room and stand-alone generator
projects if they are supporting a critical facility.
FEMA Response: The commenter is correct that FFRMS is a minimum
requirement under part 9. In section C.4 of the policy, FEMA clarifies
pursuant to 44 CFR 9.11(d)(6), a more restrictive Federal, State, or
local standard will be used. Actions may follow a higher standard so
long as the action complies with FEMA's program requirements.
In section A.2 of FEMA's FFRMS policy, the agency clarifies
applicability of the policy to specific actions, including actions
involving substantial improvement and substantial damage. FEMA does not
believe the policy requires additional revision given the language in
section A.2 regarding applicability. Section C of the policy explains
how FEMA determines the FFRMS floodplain. Specific actions listed in
section A.2 that are within the FFRMS floodplain are subject to the
requirements of the policy.
FEMA appreciates the commenter's interest in the application of the
Benefit-Cost Analysis (BCA) tool to the FFRMS process for FEMA
programs. FFRMS does consider current and future flood risks. Where
CISA is available and
[[Page 56967]]
actionable, sea level rise is specifically incorporated into the
determination of the FFRMS flood elevation. FEMA's FFRMS policy will
generally not change BCA requirements for FEMA programs. For FEMA's HMA
program, additional elevation above the BFE incorporated into the
design of the project and attributed to current and future flood risk
such as sea level rise would be allowable in the BCA. Currently, pre-
calculated benefits that streamline the cost-effectiveness
determination for structure elevation projects are limited to
structures where some part of the structure is within the SFHA. For an
elevation project where the entire structure footprint is outside the
SFHA, a BCA will be required to show cost-effectiveness. For FEMA's PA
program, cost-effectiveness requirements apply only to Hazard
Mitigation measures on projects to restore disaster damaged structures
and facilities. FFRMS elevation requirements are mandated by law and
therefore are eligible for financial assistance without additional
cost-effectiveness analysis. FEMA notes any increased costs are
generally eligible for funding under FEMA's assistance programs subject
to cost share requirements.
The requirements of Sec. 9.11(d)(1) still apply and remain
unchanged in this final rule. The commenter references V Zone
mitigation reconstruction projects. For V Zone actions that are new
construction, FEMA is prohibited from funding such actions unless the
action is functionally dependent or facilitates open space use. The HMA
Program and Policy Guide also states HMA mitigation reconstruction
projects are prohibited in the V Zone and in floodways \183\ and this
final rule and FFRMS policy will not change that requirement. HMA
mitigation reconstruction actions that are within the FFRMS floodplain
must either be relocated or elevated to the FFRMS requirements.
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\183\ Hazard Mitigation Assistance Program and Policy Guide, pg.
85 available at https://www.fema.gov/grants/mitigation/guide (last
accessed Mar. 20, 2024).
---------------------------------------------------------------------------
Regarding the commenter's request for clarification on whether or
not specific actions were considered critical and subject to FFRMS,
FEMA cannot provide a full adjudication of whether an action is a
critical action without context. FEMA makes the determination of
whether an action is a critical action as part of the 8-step process on
a case-by-case basis with input from the applicant. FEMA's definition
of ``critical action'' is consistent with Executive Order 11988, as
amended, through the Implementing Guidelines and further clarified in
the Revised Guidelines. The Revised Guidelines provide further details
on what constitutes a critical action. FEMA will leverage the
information in the Revised Guidelines when providing additional
guidance to stakeholders.
As explained throughout this final rule, FEMA will publish
additional resources for the public and SLTT partners identifying what
the FFRMS is, and how the agency will implement the Executive Orders to
help applicants of FEMA-funded assistance programs. FEMA's regional
offices will also provide technical assistance in support of FFRMS
implementation.
Comment: The same commenter also had several other recommendations
for FEMA's FFRMS policy. The commenter recommended FEMA add an emphasis
on specific codes and standards that might be applicable to specific
FEMA programs, limit the dry floodproofing design to 3 feet for any new
construction as recommended by NFIP Technical Bulletin 3, and cap
elevation costs at the current NFIP ceiling for building coverage or
the current replacement value. The commenter also suggested FEMA add
information related to relocation regarding nature-based solutions,
stating that instead of elevating or reconstructing in place the
preference should be to relocate an action.
FEMA Response: The FFRMS policy provides information on FEMA's
Building Codes Strategy and refers to specific codes and standards the
agency leverages through specific program policies. FEMA does not
believe additional emphasis on specific codes and standards is required
in the FFRMS policy, as these are detailed in each specific program's
policies. FEMA will distribute additional resources for the public and
SLTT partners identifying what the FFRMS is, and how the agency will
implement the Executive Orders to assist applicants of FEMA-funded
assistance programs. FEMA will also provide technical assistance
through the agency's regional offices in support of FFRMS
implementation.
FEMA's FFRMS policy states ``[e]levation and floodproofing
requirements must be consistent with NFIP criteria or any more
restrictive local standard.'' \184\ Rather than direct quotation of a
specific requirement for floodproofing design as the commenter
requested, section G.1.d of the FFRMS policy addresses the use of other
FEMA publications, including NFIP Technical Bulletins to assist
readers.
---------------------------------------------------------------------------
\184\ FFRMS policy, pg.8.
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FEMA believes the commenter's suggested funding limitations to cap
elevation costs are outside the scope of this rulemaking. Applicants
seeking FEMA program funding will be required to comply with that
program's eligibility requirements, which may consider cost
effectiveness of the proposed action.
Regarding the commenter's request to add information regarding
relocation, FEMA notes this policy does not change the current
requirement of step 3 of the 8-step process: ``If a practicable
alternative exists outside of the floodplain or wetland FEMA must
locate the action at the alternative site.''
Comment: Another commenter asked if Approach 2 was only for
critical actions.
FEMA Response: Approach 2 (the FVA) may be used for both critical
and non-critical actions where CISA is not available and actionable.
FEMA's FFRMS policy requires FEMA to determine the FFRMS floodplain
according to the CISA for all locations where the best-available,
actionable hydrologic and hydraulic data methods that integrate current
and future changes in flooding based on climate science exist. When
CISA is not available for a critical action, the FFRMS policy requires
FEMA to determine the FFRMS floodplain as the area that would be
inundated by the higher of the 0.2 percent annual chance flood and 3
feet of freeboard above the BFE for that location (the Freeboard Value
Approach or FVA). When CISA is not available for a non-critical action,
the FFRMS policy requires FEMA to determine the FFRMS floodplain as the
area that would be inundated by the lower of the 0.2 percent annual
chance flood and 2 feet of freeboard above the BFE for that location
(the FVA). In coastal areas where CISA is unavailable, the FFRMS policy
requires the FVA be used if the available 0.2 percent annual chance
flood elevation does not account for wave action.
Comment: One commenter stated several links in the policy document
did not appear to be active.
FEMA Response: FEMA appreciates the commenter's review of the
policy document links and has confirmed the links are updated and
active in the attached FFRMS policy.
I. The FFRMS and Floodplain/Wetland Determination Data
1. Data Availability
Comments: Four commenters discussed the availability of the CISA
data to implement the FFRMS and some of the commenters requested maps
or other resources depicting the FFRMS
[[Page 56968]]
floodplain. A commenter stated there were no consistently accurate
resources depicting the floodplain, floodway, the 100-year floodplain,
the 500-year floodplain, or the FFRMS floodplain. The commenter stated
that the floodplain determination triggered whether a proposed action
was required to complete the 8-step decision-making process and the
lack of FFRMS floodplain maps would create difficulty for stakeholders
seeking Federal funding from FEMA for projects. The commenter stated
that FEMA's work with other agencies to develop FFRMS tools and
resources would help situations involving existing development but
would not deter new development because the FFRMS floodplain
determination would come only after the initial investments were made.
The commenter added that FEMA's regulatory maps for the NFIP help
stakeholders determine whether a property is located in a regulated
floodplain within a short period of time and with a high degree of
certainty and that the FFRMS establishes a moving, undocumented, and
unmapped target that would be used haphazardly to determine the
floodplain status of any given property.
Further, the commenter stated FEMA had not provided enough
information on how FEMA would implement the preferred CISA approach and
had not defined when data might be considered to be ``available'' or
``actionable.'' The commenter stated the regulatory text lacked
information on the CISA data and FEMA's request for comment on how the
CISA could be implemented using a publicly accessible, standardized,
predictable, flexible, and cost-effective methodology indicated the
agency was uncertain of how to apply the CISA to any given project. The
commenter stated the lack of maps and other resources depicting the
FFRMS floodplain made the floodplain determination susceptible to
confusion, error, and potential abuse. The commenter stated FEMA
rejected the use of the 0.2PFA based on data availability, costs, and
certainty for stakeholders and stated concern with FEMA moving forward
with the CISA, stating that approach was supported by even less data.
Conversely, a second commenter stated the necessary data and
modeling capabilities underpinning CISA have continued to expand in
recent years, making CISA an increasingly practicable methodology for
more accurately determining the extent of the FFRMS floodplain. The
commenter wrote that FEMA should emphasize developing and deploying the
necessary data to support the use of the CISA more broadly and
specifically consider and address how regional data limitations could
result in inequitable outcomes if the CISA is routinely unavailable in
low income, rural, Tribal, or otherwise underserved communities.
Two other commenters requested that FEMA provide mapping depicting
the FFRMS floodplain. One commenter specifically requested mapping
reflecting the CISA. One of the commenters noted the importance of
mapping to identify all 3.5 million miles of floodplains associated
with streams, rivers, and coastlines. This commenter recommended FEMA
create maps with as much coverage as possible by considering
incorporating data from areas with Base Level Engineering (BLE) in
additional areas with detailed flood studies, when possible. The
commenter stated this was the best way to ensure consistent, accurate
CISA use.
FEMA Response: FEMA disagrees with the commenter that there are not
sufficient resources depicting the floodplain, floodway, the 1 percent
annual chance floodplain, or the 0.2 percent annual chance floodplain
for all regions of the country. The commenter acknowledges further in
their own comment that such resources currently exist for the 1 percent
annual chance floodplain when stating the wide availability and
certainty of FEMA's FIRMs. While regulatory mapping products may not
exist depicting all of the areas referenced by the commenter,
floodplain determinations under part 9 are not solely predicated on
existing FIRMs. Rather, FEMA will use best available information, which
may include information that is non-regulatory or FEMA preliminary
flood hazard data. To be designated as the best available information,
the information must be at least as restrictive as information provided
by effective FIRMs per FEMA's best available information policy.\185\
Given this policy, the agency will be continuously improving the data
associated with the floodplain determination. FEMA's regulatory mapping
products are a starting point for the floodplain determination under
part 9 and any other flood information used should be at least as
restrictive as those regulatory products.
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\185\ See FEMA Policy 104-008-2: Guidance on the Use of
Available Flood Hazard Information, available at https://www.fema.gov/sites/default/files/2020-04/Available_Flood_Hazard_Information_Policy_104-008-2.pdf (last
accessed Mar. 20, 2024).
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Further, while there are no regulatory mapping products depicting
the FFRMS floodplain, FEMA believes the information provided in the
public docket with this rulemaking is sufficient to establish the FFRMS
floodplain. Specifically, the FFRMS CISA State of the Science Report
and the FFRMS Job Aid are resources to determine the FFRMS floodplain.
Using the FFRMS Job Aid, FEMA can determine the FFRMS floodplain
relevant to a particular location within approximately 23 minutes.
While FEMA appreciates that the commenter seeks to make the
floodplain determinations, the agency has historically made and will
continue to make floodplain determinations under part 9 by partnering
with applicants in the 8-step decision-making process. FEMA will make
the floodplain determination leveraging the FFRMS Job Aid published on
the agency's website and in the public docket of this rulemaking. The
FFRMS Job Aid is a resource for FEMA and applicants that details the
methodology and process by which the FFRMS floodplain can be determined
for the CISA, FVA, and 0.2PFA. FEMA further notes that the commenter's
concerns regarding the floodplain determination are only a part of the
analysis at Step 1 of the 8-step process. The determination in Step 1
is not just whether or not an action is located within a floodplain or
wetland but is also whether the action would impact the floodplain or
wetland.
FEMA will continue to rely on 44 CFR 9.7, FEMA Policy 104-008-2:
Guidance on the Use of Available Flood Hazard Information,\186\ and the
Revised Guidelines in determining whether CISA and flood hazard data is
available and actionable. The FFRMS CISA State of the Science Report is
based on the Revised Guidelines and further refines the initial
framework from Appendix H to define two specific workflows for applying
CISA. The FFRMS CISA State of the Science Report identifies the latest
sea level rise projections from the National Climate Assessment as
available and actionable data for CISA.\187\ FEMA understands the
commenter's concerns in seeking a simplified resource that depicts the
FFRMS floodplain and is coordinating across the federal government to
develop additional tools beyond the FFRMS Job Aid to assist agencies
and stakeholders in determining the appropriate vertical flood
elevation and corresponding horizontal FFRMS floodplain. FEMA will
continue to
[[Page 56969]]
collaborate across the Federal government to develop tools to
facilitate the implementation of CISA and the FFRMS. The IWG recently
released a beta version of the Federal Flood Standard Support Tool
(FFSST), a novel, interactive, map-based tool that incorporates new
data to help users identify if a Federally funded project is in the
FFRMS floodplain, for comment.\188\ However, FEMA will initially rely
on the FFRMS Job Aid methodology to determine the FFRMS floodplain.
---------------------------------------------------------------------------
\186\ Available at https://www.fema.gov/sites/default/files/2020-04/Available_Flood_Hazard_Information_Policy_104-008-2.pdf
(last accessed Jan. 24, 2024).
\187\ FFRMS CISA State of the Science Report, pgs. 22-23.
\188\ 89 FR 25674 (Apr. 11, 2024).
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The commenter incorrectly characterizes FEMA's request for comment
as an indication that the agency is unable to apply the CISA. As
explained above and throughout this final rule, FEMA is leveraging the
resources provided in the public docket of this rulemaking to implement
the FFRMS. As part of the NPRM, FEMA sought public comment to gauge the
public's understanding of CISA and implementation of the FFRMS using
the CISA, including locally available CISA data and methods. FEMA is
collaborating across the Federal government to develop resources to
further assist with FFRMS implementation beyond the FFRMS Job Aid
provided in the rulemaking docket, the public comments requested will
help the agency through work with the IWG to enhance the Job Aid and
other interagency resources. Additionally, FEMA sought public comment
to engage more dialogue on data availability and actionability beyond
Federal interagency resources for FFRMS implementation.
FEMA further disagrees with the first commenter that the CISA is
supported by even less data than the 0.2PFA. FEMA's policy addresses
concerns regarding the availability and actionability of CISA data by
offering a flexible approach to implement either the FVA or 0.2PFA
where CISA data is not available and/or actionable. Further, as the
policy explains, the use of both CISA and 0.2PFA are subject to data
availability. While CISA is preferred, where CISA data is not available
and/or actionable, the agency will rely on the alternative approaches
as detailed in the FFRMS policy.
FEMA agrees with the second commenter that since the introduction
of the CISA in 2015, additional data has become available to better
inform the CISA.\189\ FEMA believes data availability and actionability
will continue to advance for the CISA in the future. Specifically, FEMA
expects more data will be developed supporting broader-based
application of the CISA as agencies implement the FFRMS, and this data
will be considered and incorporated into future updates of the FFRMS
and FEMA's implementation thereof. FEMA's policy approach is to use the
CISA where available and actionable, recognizing that the data is still
not available and not actionable in every location. FEMA also
recognized equity concerns in the policy approach, specifically
considering over- and under-building concerns for locations where the
CISA may be unavailable as explained in the NPRM preamble. The Revised
Guidelines recognize the importance of consideration of impacts to
vulnerable populations, including those at risk to impacts of flooding
due to their location or because they are overburdened, lack resources,
or have less access to resources.\190\ Consistent with these concerns,
FEMA's FFRMS policy would require the lower of the FVA floodplain or
the 0.2PFA floodplain for non-critical actions. FEMA believes the lower
approach would help reduce the burden on communities by addressing
concerns related to overbuilding, particularly in underserved
communities seeking to rebound quickly and effectively from a disaster.
Selecting the lower approach for non-critical actions will still result
in a higher level of resilience than the current requirements under
part 9, while also taking equity and cost-effectiveness considerations
into account.
---------------------------------------------------------------------------
\189\ See ``Federal Flood Risk Management Standard Climate-
Informed Science Approach (CISA) State of the Science Report,''
available at https://www.whitehouse.gov/wp-content/uploads/2023/03/Federal-Flood-Risk-Management-Standard-Climate-Informed-Science-Approach-CISA-State-of-the-Science-Report.pdf?trk=public_post_comment-text (last accessed Jan. 24,
2024), https://www.fema.gov/floodplain-management/intergovernmental/white-house-flood-resilience-interagency-working-group (last
accessed Jan. 24, 2024), and posted to the public docket for this
rulemaking at https://www.regulations.gov/document/FEMA-2023-0026-0007.
\190\ See Revised Guidelines, pg. 67.
---------------------------------------------------------------------------
FEMA appreciates the concerns of the remaining commenters
requesting maps that depict the FFRMS floodplain and the importance of
providing maps with as much coverage as possible. FEMA understands the
commenter's concerns in seeking a simplified resource such as a map
depicting the FFRMS floodplain and is coordinating across the federal
government to develop additional tools beyond the FFRMS Job Aid to
assist agencies and stakeholders in determining the appropriate
vertical flood elevation and corresponding horizontal FFRMS floodplain.
The IWG recently released a beta version of the Federal Flood Standard
Support Tool (FFSST), a novel, interactive, map-based tool that
incorporates new data to help users identify if a Federally funded
project is in the FFRMS floodplain, for comment.\191\ However, FEMA
will initially rely on the FFRMS Job Aid methodology to determine the
FFRMS floodplain.
---------------------------------------------------------------------------
\191\ 89 FR 25674 (Apr. 11, 2024).
---------------------------------------------------------------------------
2. Methodology
Comments: FEMA received questions regarding the CISA floodplain
determination methodology. Commenters stated the NPRM did not specify
how FEMA would determine the best-available, actionable climate science
data and methods for the CISA, stating the agency also did not explain
how it would select, evaluate, and update the data and methods that
inform the CISA. One commenter asked what sources of data and methods
FEMA would use; how FEMA would account for uncertainty and variability
in climate projections; and how often FEMA would update the data and
methods to reflect new scientific findings. One commenter requested
information on the methods FEMA would use prior to selecting data and
asked whether state agencies, floodplain managers, and other
stakeholders would have an opportunity to inform what best aligned with
on-the-ground realities. Both of these commenters asked how FEMA would
communicate the data and methods to stakeholders and the public.
One commenter raised concerns that the CISA was still emerging and
stated the overall approach would be overly conservative. Similar to
other comments described earlier in this summary, this commenter asked
who would make the determination to accept the science used for CISA
and which projections would be applicable for design life and risk
aversion of the structure. This commenter noted the FFRMS did not
mention how recent the local climate study needed to be for the CISA
and stated that regulatory agencies choose to enforce the most extreme
flood events. The commenter recommended FEMA provide guidance for how
to use climate projection data for development of unsteady hydraulic
models which would be required to determine rate of rise of floodwater
and durations.
Another commenter provided several specific recommendations
regarding actionable model criteria for the CISA including that the
models be well-established in practice; not extrapolate results;
display information on uncertainty; are well-calibrated; provide
outputs that are understandable; and be
[[Page 56970]]
evaluated via peer-review. The commenter recommended that FEMA provide
additional clarity as to what standard of peer review would be
considered efficacious when producing future flood risk models, and
that FEMA follow up with entities peer reviewing models to confirm that
this standard has actually been met. This commenter encouraged the use
of a consistent and accurate methodology for determining the FFRMS
floodplain across the Federal government. The commenter stated that
where CISA data was not available, utilizing the 1 percent annual
chance floodplain and the 0.2 percent annual chance floodplain would be
appropriate, as those are well understood and adopted for regulatory
purposes under the NFIP, as well as the mortgage and insurance
industries broadly.
Another commenter stated the lack of transparency in the FFRMS
floodplain determination data raised concerns similar to concerns
raised regarding proprietary tools used in the implementation of FEMA's
Risk Rating 2.0. The same commenter stated proprietary tools would make
it difficult to assess whether a CISA floodplain determination was
appropriate for local conditions for a specific action and stated
national-scale, one-size-fits-all tools would not be readily applicable
to project sites in every location, including rural states. The
commenter requested FEMA commit to bringing in State and local
stakeholders to provide their perspectives.
FEMA Response: FEMA believes the information provided in the
rulemaking docket addresses the commenters' concerns regarding how the
agency will select, evaluate, and update the data and methods that
inform the CISA and account for uncertainty and variability in climate
projections. As explained above, the FFRMS CISA State of the Science
Report and FFRMS Job Aid provide the public with information on the
best available and actionable data for the CISA and the methodology the
agency intends to initially use to determine the FFRMS floodplain using
the CISA. The FFRMS CISA State of the Science Report and the Revised
Guidelines provides details on how the agency will determine the
availability and actionability of data for the CISA. The FFRMS Job Aid
provides the methodology and process FEMA will use, based on those
resources, to determine the FFRMS floodplain.
As explained above, FEMA makes the determination for Step 1 of the
8-step process, in coordination with applicants, and will work with
State agencies, floodplain managers, and other stakeholders during this
process to best understand the on-the-ground realities. Pursuant to 44
CFR 9.11(d)(6), a more restrictive Federal, State, or local standard
will be used in lieu of the FFRMS. This includes the use of local CISA
data and methods that have been adopted by a community for use in
floodplain management, as long as such data result in a more
restrictive standard. FEMA notes that the agency did communicate
information on the data and methodology to determine the FFRMS
floodplain to stakeholders and the public with this rulemaking by
providing the FFRMS CISA State of the Science Report and FFRMS Job Aid
in the public docket. FEMA will provide additional resources to SLTTs
and the public and will offer technical assistance regarding the FFRMS
floodplain determination as part of the FFRMS implementation. FEMA
disagrees with the commenter that agencies choose to enforce the most
extreme flood events; the CISA is based on the best available and
actionable data, not the most extreme scenarios.
With respect to the comment suggesting that FEMA support a
consistent and accurate methodology for determining the FFRMS
floodplain across the Federal government, FEMA supports the development
of interagency tools because such tools enhance predictability and
mitigate transaction costs associated with floodplain determinations.
FEMA has prioritized the use of such tools in its policy approach and
will initially implement the CISA using the FFRMS Job Aid. FEMA's
interagency consultative role in the broader implementation of the
FFRMS across the Federal government, through the agency's participation
in the Flood Resilience IWG and the FIFM-TF, helps ensure consistent
and effective implementation. FEMA's FFRMS policy further provides
details on how FEMA will coordinate with other agencies when
implementing actions in the same area as another Federal agency. See
Section H, page 9. At the same time, there is no requirement in the
FFRMS or the Revised Guidelines for all Federal agencies to select the
same approach or to implement the CISA with the same tools; the FFRMS
is a resilience standard and is meant to be flexible.\192\ Regarding
the commenter's question regarding which projections would be
applicable for design life and risk aversion of the structure, the
FFRMS Job Aid Section 2.4.1 discusses service life including in the
context of critical actions.\193\ This information should resolve the
commenter's question. FEMA notes that the agency's proposed
implementation of the CISA does not include incorporating climate
projection data into hydraulic models (steady or unsteady).
---------------------------------------------------------------------------
\192\ See Revised Guidelines, pg. 57.
\193\ See FFRMS Job Aid, pg. 14.
---------------------------------------------------------------------------
FEMA appreciates the recommendations provided by another commenter
on the actionable model criteria for the CISA. FEMA is not relying on
models for the CISA implementation beyond the models already utilized
to produce the agency's regulatory and non-regulatory products for the
NFIP. Appendix H of the Revised Guidelines \194\ and the FFRMS CISA
State of the Science Report \195\ provide an overall framework for
assessment of data and models to determine available and actionable
climate science.
---------------------------------------------------------------------------
\194\ See Revised Guidelines, pgs. 16-17, 50-52.
\195\ See FFRMS CISA State of the Science Report, pgs. 7-8.
---------------------------------------------------------------------------
FEMA agrees with this commenter that, where CISA data is not
available and not actionable, the agency will rely on the alternative
approaches as detailed in FEMA's FFRMS policy. Section C.3 of FEMA's
FFRMS policy states that FEMA will determine the FFRMS elevation and
the FFRMS floodplain depending on the criticality of the action. For
non-critical actions, the FFRMS floodplain is the area that would be
inundated by the lower of the 0.2 percent annual chance flood or 2 feet
of freeboard above the BFE. For critical actions, the FFRMS floodplain
is the area that would be inundated by the higher of the 0.2 percent
annual chance flood or 3 feet of freeboard above the BFE. For locations
where information about the elevation and/or extent of the 0.2 percent
annual chance floodplain is not available, the FFRMS floodplain is 3
feet of freeboard above the BFE. To clarify, the FVA relies on the 1
percent annual chance floodplain but incorporates an additional measure
of safety beyond the 1 percent annual chance floodplain. If available
0.2 percent annual chance floodplain data is not available, FEMA will
utilize the appropriate FVA to determine the FFRMS floodplain and
elevation.
Finally, FEMA believes the interagency tools used for FFRMS
implementation have been transparent in nature. The tools FEMA will
utilize to implement the FFRMS are not proprietary. FEMA, as a co-chair
of the Flood Resilience IWG, under the National Climate Task Force,
facilitated the publication of both the FFRMS Job
[[Page 56971]]
Aid \196\ and FFRMS CISA State of the Science Report.\197\ The FFRMS
Job Aid helps federal agencies and their non-federal partners
(including potential federal financial aid recipients) conduct a
screening to determine if a proposed federally funded action will be
located within an FFRMS floodplain, based on any of the three
approaches in accordance with Sec. 2(a)(1) of Executive Order 11988, as
amended. FEMA will initially utilize the FFRMS Job Aid to make these
determinations, and this resource was posted in the public docket of
this rulemaking for transparency to the public. As explained above,
FEMA makes the determination for Step 1 of the 8-step process, in
coordination with applicants, and will work with State and local
communities during the 8-step process. FEMA will accept local CISA data
and methods that have been adopted by a community for use in floodplain
management, as long as such data result in a more restrictive standard
and will help further ensure local needs are met.
---------------------------------------------------------------------------
\196\ See https://www.fema.gov/sites/default/files/documents/fema_ffrms-floodplain-determination-job-aid.pdf (last accessed Jan.
24, 2024) and posted to the public docket for this rulemaking at
https://www.regulations.gov/document/FEMA-2023-0026-0004.
\197\ Available at https://www.whitehouse.gov/wp-content/uploads/2023/03/Federal-Flood-Risk-Management-Standard-Climate-Informed-Science-Approach-CISA-State-of-the-Science-Report.pdf?trk=public_post_comment-text (last accessed Jan. 24,
2024), https://www.fema.gov/floodplain-management/intergovernmental/white-house-flood-resilience-interagency-working-group (last
accessed Jan. 24, 2024), and posted to the public docket for this
rulemaking at https://www.regulations.gov/document/FEMA-2023-0026-0007.
---------------------------------------------------------------------------
Comment: One commenter requested FEMA specify which NOAA sea level
rise (SLR) scenario the agency would consider as the minimum standard
to apply the CISA to HMA grant project benefit-cost analysis (BCA) and
designs. The commenter also requested FEMA specify under what
conditions it would allow higher SLR scenarios to be used, stating the
lack of clarity would result in slowdowns and inconsistency in
application reviews across FEMA regions and projects. The commenter
requested FEMA clarify whether the agency would defer to applicant or
State policies that may incorporate higher projections and otherwise
meet the criteria for the CISA.
FEMA Response: FEMA is not codifying the specific climate scenarios
to be used as part of the CISA analysis. As explained above, FEMA is
relying on interagency processes to select and evaluate the data and
methods used to implement the FFRMS. In the proposed rule, FEMA
referred readers to the FFRMS Job Aid and the FFRMS CISA State of the
Science Report, which were posted to the public docket associated with
this rulemaking.\198\ FEMA has also posted the FFRMS Job Aid on its
website \199\ and will leverage this tool when implementing the FFRMS.
Consistent with the FFRMS Job Aid, FEMA will use the intermediate
scenarios for non-critical actions and intermediate-high scenarios for
critical actions using the SLR data from NOAA.\200\
---------------------------------------------------------------------------
\198\ See https://www.regulations.gov/document/FEMA-2023-0026-0004.
\199\ See https://www.fema.gov/sites/default/files/documents/fema_ffrms-floodplain-determination-job-aid.pdf (last accessed Jan.
24, 2024).
\200\ FFRMS Job Aid, pgs. 20-21. NOAA viewer available at
https://coast.noaa.gov/slr/ (last accessed Mar. 28, 2024).
---------------------------------------------------------------------------
In response to the commenter's concerns regarding the use of higher
SLR scenarios and whether FEMA would accept higher standards, 44 CFR
9.11(d)(6) provides that a more restrictive Federal, State, or local
standard will be used in lieu of the FFRMS. Thus, if a more restrictive
State or local standard relied on a higher SLR scenario, that more
restrictive standard would be used. FEMA notes the determination on the
information the applicant is using under part 9 has always been made by
the agency and thus, FEMA does not anticipate delays with projects as a
result of the FFRMS implementation.
Comment: A commenter stated that FEMA's policy approach was not
straightforward, as the boundaries and elevations for both the FVA and
0.2PFA must be identified for each project and then compared to
establish the final floodplain but stated there was little information
on how those boundaries and elevations would be determined. Similar to
other commenters above, the commenter asked who would conduct the
analysis, what data would be used, and what ground-truthing if any
would be performed. The commenter stated this must be determined prior
to FFRMS implementation. This commenter stated CISA's application was
not understood nor was it likely to be consistent given the significant
leeway provided to the Regional Administrators. The commenter requested
FEMA explain how the agency would choose the FFRMS approach it would
take, what data the agency would rely on, and provide publicly
available maps depicting the regulated floodplain (whether that
floodplain was determined based on the 1 percent annual chance
floodplain, the 0.2 percent annual chance floodplain, or using the
CISA, FVA, or any other methodology). The commenter stated the FFRMS
was otherwise premature, and FEMA should cease implementation until
these efforts were complete.
FEMA Response: FEMA understands the commenter's concern that both
the FVA and 0.2PFA will be identified where the CISA is not available
and/or actionable. However, FEMA does not believe this analysis will be
overly burdensome to the agency or to applicants. FEMA has made, and
will continue to make, floodplain determinations partnering with
applicants in the 8-step decision-making process. The FFRMS Job Aid
provides the methodology and process by which the FVA and 0.2PFA can be
determined. This document is publicly available on FEMA's website and
was posted to the public docket with this rulemaking. Using the FFRMS
Job Aid, FEMA can determine the FFRMS floodplain relevant to a
particular location within approximately 23 minutes.
FEMA disagrees with the commenter that the CISA's application is
not understood nor likely to be consistent given the resources provided
with this rulemaking as detailed above. The FFRMS CISA State of the
Science Report and the FFRMS Job Aid help Federal agencies and the
public better understand the CISA, the availability and actionability
of the CISA data, and how to determine the FFRMS floodplain using the
CISA, FVA, and the 0.2PFA. FEMA does not agree with the commenter that
FFRMS implementation, including the CISA, will result in inconsistency.
FEMA does not believe Regional Administrators are provided with a level
of discretion to result in inconsistent FFRMS implementation. Regional
Administrators have historically had the authority provided in 44 CFR
9.7, and FEMA is not changing their authority with this rule.
FEMA notes that the agency explains how it will choose the FFRMS
approach to be taken in the FFRMS policy. Section C.3 of the FFRMS
policy states FEMA will determine the FFRMS elevation and the FFRMS
floodplain depending on the criticality of the action. For non-critical
actions, where the CISA is not available, the FFRMS floodplain is the
area that would be inundated by the lower of the 0.2 percent annual
chance flood or 2 feet of freeboard above the BFE. For critical
actions, where the CISA is not available, the FFRMS floodplain is the
area that would be inundated by the higher of the 0.2 percent annual
chance flood or 3 feet of freeboard above the BFE. For locations where
information about the
[[Page 56972]]
elevation and/or extent of the 0.2 percent annual chance floodplain is
not available, the FFRMS floodplain is 3 feet of freeboard above the
BFE. To clarify, the FVA relies on the 1 percent annual chance
floodplain but incorporates an additional measure of safety beyond the
1 percent annual chance floodplain. If available 0.2 percent annual
chance floodplain data is not available, FEMA will utilize the
appropriate FVA to determine the FFRMS floodplain and elevation.
As explained above, FEMA will initially rely on the FFRMS CISA
State of the Science Report and the FFRMS Job Aid to implement the
FFRMS. FEMA appreciates the desire to have maps depicting the FFRMS
floodplain and is coordinating across the Federal government to develop
additional tools beyond the FFRMS Job Aid to assist agencies and
stakeholders in determining the appropriate vertical flood elevation
and corresponding horizontal FFRMS floodplain. However, FEMA will
initially rely on the FFRMS Job Aid methodology to determine the FFRMS
floodplain. Given the agency made resources publicly available on this
rulemaking docket to determine the FFRMS floodplain, FEMA does not
believe delaying the FFRMS implementation is needed. Flood risk is not
static and will evolve over time due to changing conditions.
Particularly in the context of Federal grantmaking, FEMA does not
believe it would be appropriate to delay FFRMS implementation pending a
comprehensive FFRMS floodplain mapping of the United States. The
decision to proceed in this matter is also consistent with FEMA's
historical practice of using best available information in the 8-step
process, which also resulted in some degree of uncertainty as part of
the project planning and application process.
Comment: A commenter noted the key language of ``best available''
and ``actionable'' in the definition of the CISA as determining the
reliability, usability, and overall credibility of the final floodplain
identification. The commenter noted FEMA's consistent use of the
terminology and the definitions found in Appendix H of the Revised
Guidelines. The commenter agreed with the terminology but recommended
the inclusion of granularity, stating that climate-informed flood risk
granular data is property-specific data. The commenter stated granular
data has three significant characteristics: structure specific
identifications, first floor height assessments, and high-resolution
digital elevation model (DEM) data. To reliably assess future flood
risk, the commenter stated FEMA must be able to both identify the
property itself and the specific structure(s) on that property that
require separate assessments. The commenter wrote that the
identification requires geospatial data that can reliably assess the
geographical boundaries of a property and its structure(s), and without
this, risk assessments would not reflect the true risk to the
structure. The commenter went on to explain how these assessments
involved models based on underlying data inputs that reliably determine
the first floor height elevation relative to sea level and ground level
and require the use of DEM. The commenter stated the key to reliability
is the use of high-resolution DEM, the level of granularity necessary
to permit reliable assessment of first floor height elevation and
related footprint data. The commenter recommended FEMA advocate for the
addition of ``granular'' as a necessary characteristic for ``best
available, actionable science.''
The same commenter stated that FEMA's flexible approach would
likely facilitate the uptake of critical forward-looking climate and
flood assessment methodologies and where those techniques and solutions
needed time to develop, still accurately account for flood risk through
proven approaches. The commenter stated that while a forward looking,
climate-informed approach would be the best framework for understanding
flood and other natural hazard risk in the future, not every community,
builder, or developer is currently equipped to understand and account
for that risk. As building the knowledge base would take time, the
commenter recommended use of the waterfall approach proposed by FEMA's
policy allowing the FFRMS floodplain to be determined using the FVA or
0.2PFA. The commenter encouraged FEMA to depict the 0.2 percent annual
chance floodplain on maps consistent with the requirements of the
Biggert Waters Flood Insurance Reform Act of 2012 (BW-12).
FEMA Response: FEMA appreciates the commenter's emphasis on the
importance of best available, actionable science to the CISA. FEMA
agrees that a determination of the location of an action and site-
specific details of the action that are needed for the floodplain
determination and minimization of impacts requires a variety of
granular data. However, all of the science and data used to define the
floodplain does not necessarily need to be granular to be actionable.
For example, regional sea level rise data is considered actionable best
available science in the FFRMS CISA State of the Science Report but
would not satisfy the definition of granular data provided by the
commenter. FEMA will continue to use granular data, where appropriate,
such as detailed digital elevation models to determine floodplain
extents and first flood elevations for structures that are part of
Federal actions. FEMA will further consider the commenter's request to
incorporate granularity through the use of structure-specific
identifications, first floor height assessments, and high-resolution
digital elevation model (DEM) data as part of the agency's role in the
IWG.
FEMA agrees with the commenter that, given that the best available
data is not available and/or actionable in all locations, both FVA and
0.2PFA should be leveraged to determine the FFRMS floodplain. FEMA also
agrees it is important to depict the 0.2 percent annual chance
floodplain on community maps consistent with the requirements of BW-12.
Comment: A commenter asked whether the approaches in the FFRMS
policy should be used to develop FIRMs or FIS. The commenter stated the
methods listed to develop the floodplain should only apply to those
actions listed in the Applicability section of the FFRMS policy.
FEMA Response: The approaches listed in section C of FEMA's FFRMS
policy document for determining the FFRMS floodplain are not used to
develop FIRMs or FIS. FIRMs and FIS are a starting point for the
floodplain determination under the 8-step process. The approaches
listed in section C of the policy are only applicable to the actions
detailed in the applicability section of FEMA's FFRMS policy.
Comment: Two commenters stated that FEMA's 2016 proposed rule
indicated the use of CISA was not appropriate and stated FEMA's current
reliance on CISA was unsubstantiated. The commenters noted an article
that expressed concerns with climate science \201\ and cited statements
in the FFRMS CISA State of the Science Report as evidence that attempts
to apply the CISA to set flood risk management standards would be
subjective. Both commenters requested transparency and adherence to the
principles of replicability and independent peer review if FEMA
utilizes the CISA. One of the commenters stated FEMA must adhere to a
specific set of criteria to clarify the
[[Page 56973]]
standard and that there must be metrics. The commenters stated that the
other approaches provided numerical targets that define what success
shall be. Both commenters stated that if FEMA could not provide
decision criteria to be applied in the CISA approach, the agency should
eliminate it as a standard.
---------------------------------------------------------------------------
\201\ See Jesse M. Kennan, ``A climate intelligence arms race in
financial markets,'' Science 365 (6459), pp. 1240-1243, abstract
available at https://www.science.org/doi/10.1126/science.aay8442
(last accessed Mar. 21, 2024).
---------------------------------------------------------------------------
FEMA Response: Since the introduction of the CISA in 2015,
additional data has become available to better inform CISA. The FFRMS
CISA State of the Science Report provides a recommendation on available
and actionable CISA data.\202\ Many of the concerns expressed by the
commenters are further addressed in that report and explain why the
CISA data is not actionable in all locations. FEMA disagrees with the
commenters' suggestion that certain statements in the FFRMS CISA State
of the Science Report regarding multiple scenarios and hybrid
approaches that could be used to determine the CISA serve as evidence
that the CISA is too subjective. The CISA guidance in Appendix H of the
Revised Guidelines and the FFRMS CISA State of the Science Report
provide broad guidance for where the CISA might be available and
actionable with sufficient expertise, local data, and project-specific
analysis. However, FEMA prioritized the type and criticality of the
action involved, the availability and actionability of the data, and
equity concerns, and determined that applying the CISA through complex
expert project-specific modeling was not appropriate for FEMA given the
agency's role in helping people recover from disasters in an expedited
manner and to reduce the subjectivity concerns of the commenters stated
above. FEMA instead decided to use consensus interagency approaches
that were readily accessible and do not require project specific CISA
modeling found in the FFRMS Job Aid.
---------------------------------------------------------------------------
\202\ The FFRMS CISA State of the Science Report identifies the
latest interagency Federal guidance for regionally-based SLR
projections as available and actionable by recommending that all
agencies should use these data as part of a CISA approach. At pg.
22, the Report states ``Federal agencies should apply this latest
interagency Federal guidance for regionally-based SLR projections.
Scenarios and time horizons should use a consistent national
approach based on risk tolerance and criticality.'' However, the
Report also warns against using the simplified approach with SLR in
areas subject to runup and overtopping on pg. 28 ``Notably, areas
subject to runup and overtopping can be very sensitive to changes in
water level (including due to SLR) and the variability of the
slope--so within a CISA implementation, these areas should be
treated with appropriate analysis and not simple linear addition of
flooding components.'' Based on these guidelines, the FFRMS Job Aid
establishes the use of simplified CISA in specific areas, namely in
some coastal environments, specifically along low-lying coastal
shorelines on the Atlantic and Gulf Coasts. See FFRMS Job Aid, pg.
10.
---------------------------------------------------------------------------
The FFRMS Job Aid details the underlying methodology used to
determine the FFRMS floodplain, including using the CISA, and FEMA
believes that resource provides sufficient transparency and
replicability to stakeholders and the public. FEMA will initially use
the FFRMS Job Aid to make the FFRMS floodplain determination. FEMA is
coordinating across the federal government to develop additional tools
beyond the FFRMS Job Aid to assist agencies and stakeholders in
determining the appropriate vertical flood elevation and corresponding
horizontal FFRMS floodplain.
FEMA does not believe that the use of CISA results in uncertainty
in the 8-step process. The FFRMS Job Aid details the underlying
methodology used to determine the FFRMS floodplain, including using the
CISA, and FEMA believes that resource provides sufficient transparency
and replicability to stakeholders and the public. The FFRMS CISA State
of the Science Report, upon which the FFRMS Job Aid is based, was
reviewed by subject-matter experts across the members of the Flood
Resilience IWG, including staff from NOAA's National Weather Service,
the USGS's Water Resources Mission Area and Coastal/Marine Hazards and
Resources Program, FEMA's National Flood Hazard Mapping Program, and
other members of the FFRMS Science Subgroup.\203\
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\203\ See FFRMS CISA State of the Science Report at i.
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FEMA agrees with one of the commenters that the FVA and 0.2PFA
provide some additional clarity to stakeholders because the 1 percent
annual chance and 0.2 annual chance floodplains are more commonly used
and depicted on FEMA regulatory and non-regulatory mapping products.
FEMA's FFRMS policy provides for the use of these approaches where the
CISA data is not available or not actionable. However, FEMA does not
believe that the CISA must be eliminated simply because the FVA and
0.2PFA are more commonly understood. The FFRMS CISA State of the
Science Report and the FFRMS Job Aid are resources the public can use
to better understand the CISA and how FEMA will implement it. These
resources provide the requisite decision criteria for how the CISA will
be determined by FEMA in the initial FFRMS implementation. FEMA will
provide additional resources and technical assistance to SLTTs and the
public regarding the FFRMS floodplain determination as part of the
FFRMS implementation to help further educate stakeholders.
3. Use of State and/or Local CISA Data
Several commenters requested FEMA consider local CISA data in
making the CISA floodplain determination.
Comments: Some commenters requested the use of specific State and/
or local data. One commenter stated the use of locally available CISA
data and methods would provide opportunities for underserved
communities to provide critical local input. One commenter recommended
FEMA develop a framework for evaluating whether local CISA data is
technically credible and appropriate. One commenter stated if State,
Tribal, territorial, or local data resulted in CISA-based elevation
standards that met or exceeded standards developed using Federal data,
then FEMA should apply the higher, locally available standards, if
reasonable. The commenter stated Federal data should act as a floor for
CISA calculation under the FFRMS.
Another commenter stated FEMA should accept local data where it is
accurate and sufficiently protective to maximize the effectiveness of
the rule. The same commenter requested FEMA consider the potential
inequities in access to CISA. Another commenter recommended FEMA
develop a framework for evaluating whether local CISA data is
technically credible and appropriate.
In addition to requesting FEMA accept local CISA data, one
commenter sought additional details on the FEMA FFRMS CISA data
development to avoid developing duplicative or conflicting data. The
commenter stated FEMA's Federal floodplain management tools (i.e., FIS
and FIRMs) are used for applications beyond their originally intended
purpose, including comprehensive planning and resilience planning. The
commenter encouraged FEMA to consider how its CISA FFRMS data and tools
could be used for comprehensive flood risk planning at multiple levels
of government when developing the products. The commenter also
encouraged FEMA to coordinate with stakeholders when developing its
CISA data and methods. Two commenters agreed that FEMA should further
engage with stakeholders regarding CISA data and methods.
FEMA Response: FEMA agrees with the commenter that Federal data
should act as a floor for the CISA calculations under the FFRMS. SLTTs
can provide input into the determination. Pursuant to 44 CFR
9.11(d)(6), a more restrictive Federal, State, or local standard will
be
[[Page 56974]]
used. This includes the use of local CISA data and methods that have
been adopted by a community for use in floodplain management, as long
as such data results in a more restrictive standard.
FEMA notes the FFRMS Job Aid is a resource to help Federal agencies
and their non-Federal partners (including potential federal financial
aid recipients) conduct a screening to determine if a proposed
federally funded action will be located within an FFRMS floodplain,
based on the CISA, FVA, or 0.2PFA, in accordance with Sec. 2(a)(1) of
Executive Order 11988, as amended. FEMA will continue to collaborate
across the Federal government to develop tools to facilitate the
implementation of CISA.
Regarding the framework for accepting local CISA data, FEMA will
continue to rely on 44 CFR 9.7, FEMA Policy 104-008-2: Guidance on the
Use of Available Flood Hazard Information,\204\ and the Revised
Guidelines in determining whether CISA and flood hazard data is
available and actionable. FEMA is coordinating across the federal
government to develop additional tools to assist agencies and
stakeholders in determining the appropriate vertical flood elevation
and corresponding horizontal FFRMS floodplain.
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\204\ Available at https://www.fema.gov/sites/default/files/2020-04/Available_Flood_Hazard_Information_Policy_104-008-2.pdf
(last accessed Jan. 24, 2024).
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FEMA's policy approach considers situations where CISA data is not
available. Specifically, the policy approach detailed in the FFRMS
Policy provides for the use of the FVA or 0.2PFA depending on the
criticality of the action and data availability. FEMA believes the
agency's policy approach will reduce concerns with underbuilding or
overbuilding and thus provide a more cost-effective, equitable
approach.
As previously explained, FEMA is relying on interagency processes
to select and evaluate the data and methods used. Appendix H of the
Revised Guidelines \205\ provides an overview of the available and
actionable data for CISA, which is the basis for these interagency
supporting tools. The FFRMS CISA State of the Science Report \206\
provides a review and update of the best-available, actionable science
that can support application of the Climate-Informed Science Approach
(CISA), reflecting science and technology advancements made since
Executive Order 13690 was issued in 2015.\207\ FEMA will rely on these
and future interagency publications for CISA data. The Revised
Guidelines also provide an explanation of how the FFRMS will be updated
in the future.
---------------------------------------------------------------------------
\205\ Available at https://www.fema.gov/sites/default/files/documents/fema_implementing-guidelines-EO11988-13690_10082015.pdf
(last accessed Jan. 24, 2024).
\206\ See https://www.whitehouse.gov/wp-content/uploads/2023/03/Federal-Flood-Risk-Management-Standard-Climate-Informed-Science-Approach-CISA-State-of-the-Science-Report.pdf?trk=public_post_comment-text (last accessed Dec. 14, 20
last accessed Jan. 24, 202423) and also posted to the public docket
with this rulemaking at https://www.regulations.gov/document/FEMA-2023-0026-0007.
\207\ 80 FR 6425 (Feb. 4, 2015).
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FEMA appreciates the importance of comprehensive flood risk
planning and is developing additional resources for communities and the
public to better understand their current and future flood risks. For
example, FEMA's Future of Flood Risk Data (FFRD) initiative will
provide a more comprehensive picture of the country's flood hazards and
risks by leveraging new technologies to include more efficient,
accurate, and consistent flood risk information across the nation.\208\
These resources can be used by communities for planning purposes. FEMA
will continue to engage with SLTTs and the public on the development
and enhancement of flood risk resources, including FFRMS implementation
resources for the CISA, FVA, and 0.2PFA.
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\208\ See https://www.fema.gov/fact-sheet/future-flood-risk-data-ffrd (last accessed Mar. 26, 2024).
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Comment: One commenter requested FEMA provide training resources to
help local communities, practitioners, and property owners understand
the impact of the rule.
FEMA Response: FEMA values additional input from SLTT partners and
the public in the 8-step process. FEMA will provide additional
resources to SLTTs and the public as part of the FFRMS implementation,
and FEMA's regional offices will provide technical assistance to
applicants for FEMA programs.
4. Other Data Concerns
Comment: One commenter stated concerns with the language in
proposed Sec. 9.7(b)(1), which stated that FEMA shall obtain enough
information so that it can fulfill the requirements in part 9 to (i)
avoid Federal action in floodplain and wetland locations unless they
are the only practicable alternatives and (ii) Minimize harm to and
within floodplains and wetlands). The commenter stated that the
language was too vague to have any meaning, as ``enough information''
did not inform the agency or the public of the requirement. The
commenter recommended some identifiable minimum standard be provided.
FEMA Response: FEMA disagrees that the proposed language is unduly
vague. In context, paragraph (b) provides that FEMA will make the
determination as part of the 8-step process and provides a list of the
types of information FEMA will use to make this determination including
the current and future flooding characteristics detailed in paragraph
(b)(3). Not all of this information is required, as the information
needed to make the floodplain or wetland determination is action-
specific and subject to data availability.
Comment: One commenter stated costs would increase for engineering
and planning around Federally funded projects when implementing FFRMS,
particularly in areas where the 0.2 percent floodplain is not currently
mapped.
FEMA Response: FEMA appreciates the commenter's concerns regarding
costs but disagrees that engineering and planning costs will
necessarily increase for actions subject to the FFRMS and particularly
for those in areas where the 0.2 percent annual chance floodplain is
not currently mapped. FEMA will initially implement the FFRMS using the
FFRMS Job Aid to determine the FFRMS floodplain and stakeholders can
also leverage this tool to determine the CISA, FVA, and 0.2PFA where
such data is available. As FEMA's FFRMS policy states, where the CISA
data is not actionable and not available and information about the
elevation and/or extent of the 0.2 percent annual chance floodplain is
also not available, the FFRMS floodplain is the FVA. By considering
data availability in the FFRMS floodplain determination and providing
resources to help stakeholders understand the FFRMS floodplain
determination, FEMA believes the commenter's concerns are addressed.
Further, FEMA considered the costs and benefits associated with
this rule, including the overall increased costs of FEMA projects, in
the regulatory impact analysis provided on the docket.\209\ FEMA
believes that the benefits of preventing property damage, protecting
Federal investments, and potentially saving lives justify the costs of
the rule. These benefits are a result of the improved protection of
structures and facilities due to increased elevation and floodproofing
standards in FEMA's implementation of the FFRMS. This rule will help to
ensure that Federal investments are better protected from
[[Page 56975]]
flood damage, and that the natural and beneficial values of floodplains
are preserved. FEMA notes any increased costs are generally eligible
for funding under FEMA's assistance programs subject to cost share
requirements.
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\209\ See https://www.regulations.gov/document/FEMA-2023-0026-0013.
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FEMA's Regulatory Mapping Products
Comments: Some commenters requested clarification on the use of
current FEMA regulatory products in the FFRMS floodplain determination.
Commenters provided input asking FEMA to improve those maps for the
FFRMS floodplain determination and other purposes. One commenter
requested FEMA update the agency's floodplain mapping techniques and
incorporate future risk into the mapping. The commenter recommended
FEMA incorporate the recommendations by the TMAC for significant
changes to FEMA's floodplain mapping techniques. The commenter
requested all agencies collaborate and align around definitions for
floodplain mapping and share expertise to develop CISA floodplain
definition methods that are consistent with one another. Such
consistency would be easier and assist applicants in adhering to agency
regulations. The commenter further recommended the MitFLG work toward
common definitions and delineation of floodplains to enable better
interagency collaboration and coordination on issues related to flood
risk reduction. The commenter also stated the need to improve and
update FEMA's regulatory mapping products, indicating these products
were essential for community-level planning, yielding enhanced
resilience. The commenter stated flood maps were essential underpinning
to drive wise land use decisions, including where not to develop and
where to conserve lands that might aid in flood risk reduction.
Another commenter stated the FFRMS did not consider FIRM effective
dates in communities where FIRMs are currently being updated and
requested clarification for applying the CISA to those communities or
applicable use of effective flood maps. One commenter noted FEMA's
policy approach to leverage the 0.2PFA or FVA where CISA data is not
available and not actionable and stated that approach was not without
challenges given FEMA's regulatory and other mapping products used in
the analysis of those approaches were outdated and likely to remain so
for the foreseeable future.
A commenter recommended Federal agencies continue relying on FEMA
flood risk data and tools for future implementation of a climate-
informed floodplain. The commenter noted FEMA's investment on flood
engineering studies and flood mapping over the past half century and
that States and localities nationwide adopted FEMA flood map data for
flood mitigation, community development, and many other purposes. The
commenter stated that abandoning current Federal efforts on flood
mapping and adopting an alternative flood map dataset would waste
Federal investments on flood engineering studies and flood inundation
mapping. Another commenter stated FEMA would have the primary
responsibility to prepare the data to support the CISA through its
existing mapping activities. The commenter noted other FEMA mapping
priorities through the agency's RiskMAP program and encouraged FEMA to
secure and allocate sufficient resources and fully utilize the
Cooperating Technical Partners program to support the CISA and related
mapping activities.
FEMA Response: FEMA appreciates the commenters' interest in the
agency's flood risk mapping efforts. FEMA is considering the TMAC
recommendations associated with future flood conditions mapping and
intends to incorporate future flood conditions into mapping products as
practicable.\210\ FEMA's interagency consultative role in the broader
implementation of the FFRMS across the Federal government, through the
agency's participation in the IWG and the FIFM-TF helps ensure
consistent and effective implementation. FEMA will continue to work in
an interagency manner in conjunction with the Water Resources Council,
the MitFLG, and the FIFM-TF to develop tools to facilitate the
implementation of CISA. FEMA agrees that the agency's regulatory
mapping products support community-level planning that enhances
resilience and help drive wise land use decisions.
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\210\ See TMAC 2021 Annual Report, Chapter 3 Future Conditions
available at https://www.fema.gov/sites/default/files/documents/fema_2021-technical-mapping-advisory-annual-report.pdf (last
accessed Apr. 1, 2024).
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FEMA understand other commenters' concerns regarding FIRM effective
dates and the age of FIRMs in some communities that may no longer
reflect current flood risk. FEMA plans to continue updating regulatory
mapping products to help address the commenter's concerns regarding
stale maps. However, floodplain determinations under part 9 are not
solely predicated on existing FIRMs and commenters' concerns about
potential challenges with the FVA and 0.2PFA based on the age of
existing FIRMs is thus unwarranted. As explained in the NPRM, FEMA will
use best available information which may include information that is
non-regulatory or FEMA preliminary flood hazard data. To be designated
as the best available information, it must be at least as restrictive
as information provided by effective FIRMs. Given the best available
information policy FEMA adopted,\211\ the agency will be continuously
improving the data associated with the floodplain determination. FEMA
notes pursuant to 44 CFR 9.11(d)(6), a more restrictive Federal, State,
or local standard will be used in lieu of the FFRMS. Communities can
leverage their own data, including the use of local CISA data and
methods that have been adopted by a community for use in floodplain
management, as long as such data results in a more restrictive
standard. FEMA believes these flexibilities address the second
commenter's concerns to ensure the best available flood risk
information is being considered in the 8-step analysis.
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\211\ FEMA Policy 104-0008-2: Guidance on the use of available
flood hazard information, available at https://www.fema.gov/sites/default/files/2020-04/Available_Flood_Hazard_Information_Policy_104-008-2.pdf (last accessed Mar. 27, 2024).
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FEMA notes that, as explained above, the agency is not abandoning
current efforts on flood mapping but rather is continuing to update
regulatory maps. FEMA is not adopting an alternative flood map dataset
as part of this rulemaking. Regulatory mapping products are part of the
NFIP's regulatory process and not impacted by this rulemaking. The
agency's investments in regulatory mapping products are not being
wasted by this effort and will continue in support of the NFIP's
regulatory process, as well as to inform the public on flood risk. FEMA
further appreciates the commenter's concern regarding sufficient
resources and will continue to utilize the Cooperating Technical
Partners program to support the agency's mapping efforts.
Comment: A commenter wrote their support for modernizing the data
and approaches used to understand and anticipate flood risks, stating
the use of best available data, technology, and modeling would yield
better baseline data to account for climate-induced increases in
precipitation and inundation. The commenter noted that data from FIRMs
in some areas can be 40 years old. The commenter noted that FEMA
predicted more accurate maps would expand the floodplain but stated
adjustments were needed to ensure the expanded mapping does not further
hinder Federal, State, and local efforts
[[Page 56976]]
to restore natural and beneficial floodplain functions.
FEMA Response: FEMA does not anticipate that more accurate mapping
of current flood risks will necessarily expand the floodplain. FEMA's
experience when revising existing regulatory floodplains is that the
overall floodplain area does not generally increase, as more accurate
maps can also mean areas are no longer designated as being within the
floodplain. While revised maps reflect updated data on inland
hydrology, coastal storms, and sea levels, they focus on current
conditions and do not include projections of future changes. FEMA does
anticipate the FFRMS, when implemented, will generally expand the
floodplain area for actions subject to the FFRMS under part 9. FEMA
agrees with the commenter that leveraging the best available
information in making the floodplain determination can assist in
accounting for climate-induced increases in precipitation and
inundation. As explained above, FEMA plans to continue updating
regulatory mapping products to address the commenter's concerns with
dated data; however, floodplain determinations under part 9 are not
solely predicated on existing FIRMs. FEMA will use best available
information which may include information that is non-regulatory or
FEMA preliminary flood hazard data. To be designated as the best
available information, it must be at least as restrictive as
information provided by effective FIRMs. FEMA does not believe
implementation of the FFRMS will hinder restoration of natural and
beneficial floodplain functions. Rather, it is also the policy of FEMA
to restore and preserve the natural and beneficial values served by
floodplains in part 9.
Comment: One commenter requested clarification on how allowing the
use of other data beyond the data found in FIRMs or FIS would affect
the CLOMR, LOMR, No Adverse Effect, No Rise processes.
FEMA Response: This rulemaking does not have any impact on the
current CLOMR, LOMR, or no rise processes. FEMA does not have a no
adverse effect process.
Interagency Tools
Comments: Some commenters requested additional information
regarding the interagency tools FEMA will utilize to depict the FFRMS
floodplain. A commenter wrote in support of developing a decision
support tool to facilitate the implementation of the FFRMS, requesting
the tool be narrowly focused, integrating and avoiding duplication of
existing Federal tools and data portals. The commenter also requested
the tool incorporate local data wherever possible and that FEMA use the
tool to highlight data gaps preventing the wider use of CISA to
encourage development of such data in those areas. Another commenter
wrote requesting FEMA work closely with NOAA, the White House Office of
Science and Technology Policy, and other appropriate departments to
ensure that States, communities, and the public can readily access
information about what data sources meet the criteria for climate-
informed science and are considered current and credible at a point in
time. Two commenters noted appreciation for FEMA's work with the Flood
Resilience IWG on developing an online mapping tool to assist in
determining the FFRMS floodplain, including the CISA and requested
prioritizing these efforts.
FEMA Response: FEMA appreciates the commenters' support of the
agency's interagency collaboration and is continuing to work with IWG
to support the FFRMS and CISA implementation. FEMA also appreciates the
commenters' statements on developing additional tools to support the
FFRMS implementation across the Federal government. FEMA agrees with
the commenter that a tool to facilitate FFRMS implementation is an
important component to the success of the FFRMS, and the agency
published on the public docket with this rulemaking the FFRMS Job Aid
as an initial resource. FEMA anticipates leveraging the FFRMS Job Aid
for determining the FFRMS floodplain when the final rule is
implemented. FEMA will continue to collaborate across the Federal
government to develop tools to facilitate the implementation of CISA
and the FFRMS. The IWG recently released a beta version of the Federal
Flood Standard Support Tool (FFSST), a novel interactive, map-based
tool that incorporates new data to help users identify if a Federally
funded project is in the FFRMS floodplain, for comment.\212\ FEMA will
also continue to rely on 44 CFR 9.7, FEMA Policy 104-008-2: Guidance on
the Use of Available Flood Hazard Information,\213\ and the Revised
Guidelines in determining whether CISA and flood hazard data is
available and actionable.
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\212\ 89 FR 25674 (Apr. 11, 2024).
\213\ Available at https://www.fema.gov/sites/default/files/2020-04/Available_Flood_Hazard_Information_Policy_104-008-2.pdf
(last accessed Jan. 24, 2024).
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Flooding Characteristics
Comment: One commenter requested FEMA retain the requirement that
Regional Administrators identify additional flooding characteristics in
the locations of proposed actions. The commenter noted FEMA's changes
in 44 CFR 9.7(b)(3) from ``shall'' to ``may'' identify such flooding
characteristics, ``as appropriate'' and requested ``shall'' be
retained, as the flooding characteristics identified included important
factors to consider when minimizing harm to floodplains and wetlands.
The commenter stated there was no adequate rationale for allowing the
Regional Administrator to ignore any or all of the flooding
characteristics. The commenter also requested FEMA include ``evacuation
and migration corridors for wildlife, including threatened and
endangered wildlife'' in the list of flooding characteristics.
FEMA Response: FEMA appreciates the commenter's concerns but does
not believe this language change is a change impacting how FEMA will
review the flooding characteristics. Rather, the edit from ``shall'' to
``may'' is a clarifying edit. As explained in the preamble to the NPRM,
the term ``shall'' suggests a mandatory requirement for the Regional
Administrator to identify all of the additional flooding
characteristics listed, yet the current qualifying ``as appropriate''
language suggests the identification was not mandatory. FEMA's current
practices do not mandate a review of each of the flooding
characteristics but rather only those that are appropriate. FEMA
updated this language to reflect the Regional Administrator's
discretion in identifying the appropriate flooding characteristics
consistent with current practices.
FEMA also appreciates the importance of wildlife and the
commenter's concerns about their habitats and evacuation and migration
corridors; however, wildlife concerns are currently part of the
flooding characteristics considered when determining the floodplain.
The definition of ``natural and beneficial values of floodplains and
wetlands'' addresses wildlife considerations, and FEMA does not believe
the additional language proposed by the commenter is required to ensure
this analysis.
Comment: Another commenter requested FEMA give local communities a
voice in the method used to determine the appropriate vertical flood
elevation stating Federal agencies may not be familiar with the local
conditions. The commenter gave an example of areas with flash floods
requiring an appropriately short rainfall interval be
[[Page 56977]]
evaluated to avoid missing the storm peak.
FEMA Response: FEMA has and will continue to consider flooding
characteristics such as those listed by the commenter consistent with
Sec. 9.7. FEMA notes that communities provide input into the
floodplain determination for part 9 and the agency coordinates with
applicants and State and local officials as appropriate throughout the
8-step process. As explained above, pursuant to 44 CFR 9.11(d)(6), a
more restrictive Federal, State, or local standard will be used. This
includes the use of local CISA data and methods that have been adopted
by a community for use in floodplain management, as long as such data
results in a more restrictive standard. Projects subject to the FFRMS
will continue to be designed to meet local needs as appropriate.
Best Available Information
Comment: Four commenters requested FEMA recognize the value of
Indigenous Knowledge and Tribal resources in the 8-step process. One
commenter supported the proposed range of data sources to ensure FEMA
relies on the best available information when determining flood risk
but requested FEMA incorporate Indigenous Knowledge when considering
best available information for determining flood risk. The commenter
noted the Biden Administration's guidance to Federal agencies to
increase reliance on Indigenous Knowledge to inform Federal decision-
making and recommended FEMA incorporate the use of such information in
the final rule. Specifically, the commenter requested FEMA revise Sec.
9.7(c)(3)(ix) to read ``State, Regional, and Tribal Agencies or
governing bodies,'' add a new Sec. 9.7(c)(3)(xi) to identify
Indigenous Knowledge as another source of high-quality information and
seek opportunities for engagement and promotion of best practices to
include Indigenous Knowledge in FEMA decision making. A second
commenter provided similar feedback, supporting the expanded inclusion
of diverse data sources and requesting FEMA integrate Indigenous
Knowledge into the final rule while also continuing to collaborate with
Tribal Nations and Indigenous Peoples to incorporate Indigenous
Knowledge into FEMA policies. A third commenter supportive of
incorporating Indigenous Knowledge into the 8-step process recommended
the final rule direct FEMA to seek input from local Indigenous
communities when developing alternatives to an action and assessing
impacts. This commenter noted that these communities may have unique,
proven methods for reducing flood risk and incorporating this knowledge
would recognize Indigenous connections to the land and help produce
better-informed decisions.
Another commenter requested FEMA align with States and Tribes on
data practices. Consistent with other commenters above, this commenter
requested FEMA consider State, Tribal, territorial, or local CISA-based
elevation standards data that met or exceeded standards developed using
Federal data. The commenter stated FEMA should apply the higher,
locally-available standards if reasonable. The commenter provided an
example of State SLR guidance using State data, requesting that FEMA
allow us of this data so long as it met or exceeded the Federal data.
The commenter stated that Federal data should act as a floor for CISA
calculation under the FFRMS and that if reasonable, locally available
data meets or exceeds the floor set by Federal data, then it should be
accepted for implementation consistent with FEMA's proposed approach to
leverage the best available data to inform flood risk. The commenter
noted the incorporation of local data and methods can provide
opportunities to achieve higher resolution data and in-depth
understanding of contextual climate impacts. The commenter requested
FEMA encourage intergovernmental and interstate collaboration to share
and improve best practices for underlying local data collection,
including agency guidance on expanding locally available data.
FEMA Response: As one commenter stated, President Biden issued
Federal government-wide guidance on recognizing and including
Indigenous Knowledge in Federal research, policy, and decision
making.\214\ FEMA agrees with the commenters on the importance of
Indigenous Knowledge in the 8-step process. FEMA agrees with the
commenter to ensure Tribes are specifically incorporated into Sec.
9.7(c)(3)(ix) and is updating this final rule to state, ``Agencies of
State, Regional, and Indian Tribal Governments.'' This edit will ensure
consideration of Indian Tribal government data in the floodplain
determination. FEMA believes the current language in Sec. 9.7(c)(3)(x)
regarding local sources covers those Tribes that are not considered to
be an Indian Tribal government under 42 U.S.C. 5122(6).
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\214\ See ``Implementation of Guidance for Federal Departments
and Agencies on Indigenous Knowledge,'' Nov. 30, 2022, found at
https://www.whitehouse.gov/ceq/news-updates/2022/12/01/white-house-releases-first-of-a-kind-indigenous-knowledge-guidance-for-federal-agencies/ (last accessed Jan. 24, 2024).
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FEMA supports the inclusion of Tribal and Indigenous knowledge into
the FFRMS process. As requested by the second commenter, FEMA is
integrating Indigenous Knowledge into the FFRMS policy accompanying
this rule. The agency will collaborate with Tribal Nations and
Indigenous Peoples to incorporate Indigenous Knowledge into FEMA
policies consistent with the guidance referenced above. FEMA further
agrees with the third commenter that local Indigenous communities may
have methods for reducing flood risk that recognize Indigenous
connections to the land and help produce better-informed decisions. To
ensure input from local communities, FEMA follows the process for early
and final public notices in the 8-step process. See Sec. Sec.
9.8(c)(4) and 9.12. The current regulatory text incorporates notice to
Tribes when effects may occur on Tribal lands in the early public
notice process. See Sec. 9.8(c)(4)(ii). The final public notice
includes notification to any entity that received early public notice.
See Sec. 9.12(a). These notifications give Tribal communities the
ability to provide input on alternatives and impacts in the 8-step
process. This ensures consideration of Tribal and Indigenous Peoples
throughout the 8-step process.
Finally, FEMA agrees with the fourth commenter that Federal data
should act as a floor for CISA calculations under the FFRMS. FEMA will
apply higher, locally available standards consistent with Sec.
9.11(d)(6) that requires a more restrictive Federal, State, or local
standard be used. This includes the use of local CISA data and methods
that have been adopted by a community for use in floodplain management,
as long as such data results in a more restrictive standard. FEMA
agrees with the commenter that locally available data can provide
valuable input into the area's climate impacts and will leverage those
higher standards adopted by communities. FEMA values additional input
from SLTT partners and the public in the 8-step process and will
continue to engage by providing additional resources and technical
assistance as the FFRMS is implemented.
Comment: One commenter requested FEMA include examples of ``other
sources'' in Sec. 9.7(c)(iii).
FEMA Response: FEMA provides a list of other sources in Sec.
9.7(c)(3)(i)-(x) of this final rule. As explained above, the agency
will provide additional resources and technical assistance to
[[Page 56978]]
SLTTs and the public as part of the FFRMS implementation.
Other Data Concerns
Comment: One commenter requested FEMA provide additional guidance
on how to identify the appropriate lifecycle for a proposed action that
uses CISA to determine the FFRMS floodplain. The commenter noted that
FEMA used a default 50-year lifecycle analysis (in the regulatory
impact analysis) and stated that would not be appropriate for all
actions. The commenter requested FEMA provide information on how the
50-year lifecycle timeline was determined, as well as guidelines on how
to determine the appropriate lifecycle on a case-by-case basis.
FEMA Response: FEMA's regulatory impact analysis was based on a
report defaulting to a 50-year lifecycle, but FEMA intends to determine
the appropriate service life on a case-by-case basis for each action.
The FFRMS Job Aid provides additional information on service life and
how FEMA will make those individual determinations.\215\
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\215\ See FFRMS Job Aid, pg. 14.
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J. FFRMS Implementation
FEMA received several comments regarding implementation of the
FFRMS. Commenters raised general process concerns with compliance with
and enforcement of the FFRMS, and costs and delays with implementing
the FFRMS. Commenters also inquired as to how FEMA would coordinate
with other Federal agencies when implementing the FFRMS, how FEMA would
effectively complete outreach to ensure effective implementation of the
FFRMS, and how FEMA would resolve environmental justice concerns.
1. Generally
Comment: A commenter stated raising individual properties or a
group of properties could not be done without considering potential for
impounding water on neighboring properties and roadways. The commenter
recommended a holistic approach with local land use agencies,
municipalities, and DOTs that identify the best path forward for a
roadway corridor.
FEMA Response: FEMA appreciates the commenter's concerns regarding
the impact of elevation on neighboring properties and roadways. FEMA
takes a holistic approach through the 8-step process as the agency
considers the impacts within or affecting floodplains and wetlands.
FEMA applicants propose actions based on their needs and planning
efforts to protect life and property. Where FEMA provides funding for
applicable actions, the FFRMS will help ensure resilience to structures
and facilities against both current and future flood risks, including
roadway corridors referenced by the commenter. Section G.2 of the FFRMS
policy provides additional details on the application of the FFRMS
resilience standard to facilities such as roadway corridors.
Comment: A commenter stated that FEMA's framework, while seeking to
retain flexibility and be easily understood and consistently applied,
would complicate understanding and implementation on the ground, as the
framework created a confusing inundation of floodplain definitions--
each of which could be used differently depending on the program and/or
situation for which it is being used and/or applied.
This commenter noted the majority of structures and facilities
impacted by the rulemaking were not residential in nature but stated
concerns about implementation and difficulties of confusing and
burdensome requirements. The commenter stated FEMA's proposed FFRMS
floodplain definition and the vagueness of its depiction would generate
countless unique floodplain definitions for programs. The commenter
stated concern that once adopted and implemented for a very small
number of Federally-funded residential projects, the Federal government
would seek to expand the FFRMS applicability to all structures and that
such a move would significantly impact housing affordability across the
country.
The commenter noted the 1 percent annual exceedance probability
(AEP) was set as the basis for the NFIP in the 1960s, and the 1 percent
AEP was considered a fair balance between protecting the public and
overly stringent regulation. The commenter stated that Executive Order
11988 has been historically and purposely tied to the 1 percent annual
chance floodplain and that the Federal government had relied on the 1
percent annual chance floodplain when determining the extent of its
authority and reach for most of its related programs, including the
NFIP, FIRMs, and the mandatory flood insurance purchase requirements.
The commenter stated this was no longer the case under the proposed
rule.
The commenter stated that during the 1978 Guidelines drafting,
concerns were raised about the need to provide a higher degree of
protection for certain activities, and the 1978 Guidelines bifurcated
the definition of floodplain for critical and non-critical actions. The
commenter noted that FEMA was taking a similar approach for the FFRMS
floodplain per the Revised Guidelines, separating the definition
further depending on the type of action and data availability. The
commenter stated that unlike the revision made in the 1978 Guidelines
where the 1 percent annual chance floodplain and the 0.2 percent annual
chance floodplain were relatively well-known recurrence intervals and
elevation levels that could be calculated, while the FFRMS floodplain
is a ``mystery.'' The commenter stated that with the FFRMS floodplain,
the public would be faced with another set of regulatory definitions,
creating inconsistencies and further confusing the various programs and
their applicability and requirements. The commenter provided an example
stating the higher flood risk standard for certain applications
generated inconsistencies with the NFIP and the countless State and
local regulations tied to the 1 percent annual chance floodplain. With
what the commenter categorized as competing floodplain definitions, the
commenter stated that Federal agencies, SLTTs, and the public would be
left wondering which definition was the ``real'' definition--the
climate-informed science definition, the freeboard definition, or the
0.2 annual chance floodplain definition. The commenter stated it would
not always be clear which definition to follow under different
circumstances and that while it may be beneficial for more people to
understand their flood risk, the regulatory uncertainty and
unpredictability of so many floodplain definitions would only multiply.
FEMA Response: FEMA disagrees that the framework to implement the
FFRMS will create a confusing inundation of floodplain definitions--
each of which could be used differently depending on the program and/or
situation for which it is being used and/or applied. Consistent with
current practice, FEMA will continue to make the floodplain
determination as part of the action taken, reducing the burden on
applicants in the process. As outlined in the FFRMS Policy, FFRMS
requirements are consistent across FEMA's programs for those actions
that are subject to the FFRMS. FEMA does not anticipate countless
inconsistent floodplain determinations resulting from the
implementation of this rulemaking for FEMA's programs as the
appropriate floodplain definition is clearly outlined in the FFRMS
Policy. FEMA notes that while other Federal agencies have their own
implementing procedures for the
[[Page 56979]]
FFRMS, FEMA will coordinate with other agencies to avoid applying
conflicting standards on the same action pursuant to Section H of the
FFRMS policy.
FEMA agrees with the commenter that the majority of structures and
facilities subject to FEMA's FFRMS implementation will not be
residential in nature. FEMA does not believe the commenter's concerns
are warranted regarding expansion of the FFRMS's applicability. As
explained above, FEMA defines ``action subject to the FFRMS'' as ``any
action where FEMA funds are used for new construction, substantial
improvement, or to address substantial damage to a structure or
facility'' in this rulemaking, and the FFRMS applies to grants for
projects funding the new construction, substantial improvement, or
repair of substantial damage under FEMA's grant programs and does not
extend to all structures. FEMA's final rule is clear that FFRMS is
limited in applicability to those Federally-funded actions.
Rather than bolstering the arguments against utilizing the FFRMS,
FEMA believes the commenter's statements regarding the 1 percent AEP
demonstrate a need to update the agency's floodplain determinations
under part 9 to meet changing conditions and better ensure Federal
investments are protected from flood damage, and that the natural
values of floodplains are preserved. More than 45 years have passed
since Executive Order 11988 and flooding continues to increase \216\
and impact Federal investments.\217\ FEMA believes the updates made to
part 9 in this final rule are an important step forward to improve
resilience and better protect Federal investments from flood damage
than the standards set over almost a half a century ago. FEMA disagrees
with the commenter that the FFRMS approaches result in confusion for
Federal agencies, SLTTs, or the public. The FFRMS Job Aid provides the
methodology and process for FEMA to determine the FFRMS floodplain
under each approach, and FEMA's FFRMS policy explains how each approach
will be applied to specific actions based on the type and criticality
of the action involved, the availability and actionability of data, and
equity concerns. FEMA believes these resources provide sufficient
clarity for implementation. To the extent stakeholders have questions
after reviewing these resources, FEMA intends to provide SLTT partners
and the public with additional resources to assist them in applying for
FEMA-funded assistance programs.
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\216\ As a result of climate change, flood events are on the
rise. Climate change is increasing flood risk through (1) more
``extreme'' rainfall events,'' caused by a warmer atmosphere holding
more water vapor and changes in regional precipitation patterns; and
(2) sea-level rise. See Rob Bailey, Claudio Saffioti, and Sumer
Drall, Sunk Costs: The Socioeconomic Impacts of Flooding 3 and 8,
Marsh McLennan (2021).
\217\ Federal Budget Exposure to Climate Risk. OMB Assessment
found https://www.whitehouse.gov/wp-content/uploads/2022/04/ap_21_climate_risk_fy2023.pdf (last accessed Jan. 24, 2024).
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FEMA further disagrees with the commenter that the agency's FFRMS
policy approach is inconsistent with the NFIP minimum standards and
other Federal, State, local, Tribal, and territorial standards. Rather,
the FFRMS is generally a higher standard. Further, Sec. 9.11(d)(6) of
the final rule states a more restrictive Federal, State, or local
floodplain management standard will be applied if higher than the
FFRMS. FEMA believes the commenter's concerns regarding confusion
between different floodplain approaches are unwarranted. The floodplain
determination in part 9 has always been distinct from the NFIP minimum
floodplain management standards. While FEMA understands that the FFRMS
approaches provide additional optionality, the FFRMS policy helps
clarify which approach is applicable to those actions subject to the
FFRMS.
Comment: Another commenter stated the application of the FFRMS
should be in progressive and adaptive fashion and requested additional
guidance on how the FFRMS would be applied.
FEMA Response: As explained in Sec. 9.5(a)(3), FEMA will apply the
FFRMS only to new FEMA-funded actions involving new construction,
substantial damage, or substantial improvement for which assistance is
made available pursuant to declarations under the Stafford Act that are
commenced on or after the effective date of the final rule, and new
FEMA-funded actions involving new construction, substantial damage, or
substantial improvement for which assistance is made available,
pursuant to notices of funding opportunity that publish on or after the
effective date of the final rule. Ongoing projects will not be impacted
by this final rule.\218\ FEMA will continue to analyze the
effectiveness of the agency's FFRMS policy as part of the FFRMS
implementation, and the policy will be reviewed, revised, extended,
and/or rescinded within four years of the issue date.
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\218\ Note that FEMA first partially implemented the FFRMS by
policy with respect to covered projects in existing floodplains in
its Public Assistance and Hazard Mitigation Assistance programs. See
FEMA Policy 104-22-003, ``Partial Implementation of the Federal
Flood Risk Management Standard for Public Assistance (Interim),''
June 3, 2022 found at https://www.fema.gov/sites/default/files/documents/fema_fp-104-22-0003-partial-implementation-ffrms-pa-interim.pdf (last accessed Jan. 24, 2024) and FEMA Policy 206-21-
003-0001, ``Partial Implementation of the Federal Flood Risk
Management Standard for Hazard Mitigation Assistance Program,'' Dec.
7, 2022 found at https://www.fema.gov/sites/default/files/documents/fema_policy-fp-206-21-003-0001-implementation-ffrms-hma-program_122022.pdf (last accessed Jan. 24, 2024). Some current FEMA
actions may be subject to these partial implementation policies;
however, those actions would not be subject to this final rule or
policy.
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Comment: The same commenter inquired as to how the final rule would
impact the current way FEMA-regulated floodplains were handled during
the NEPA process.
FEMA Response: FEMA's integrated reviews under E.O. 11988 and NEPA
are unchanged by the final rule.
Compliance/Enforcement
Comments: Two commenters sought clarification on how FEMA would
ensure compliance with the rule. One commenter stated the rule did not
address how FEMA would ensure compliance and enforcement of the FFRMS.
The commenter noted FEMA would monitor and evaluate the implementation
of the FFRMS by Federal agencies and recipients of Federal funds but
did not specify how FEMA would do so. The commenter asked FEMA to
provide more information and procedures on what mechanisms FEMA would
use to verify that Federal actions complied with the FFRMS, what
consequences FEMA would impose for non-compliance, and how FEMA would
handle disputes or appeals regarding compliance. Another commenter also
stated the rule did not include monitoring, evaluating, or compliance.
FEMA Response: FEMA currently leverages the 8-step process detailed
in 44 CFR part 9 as the mechanism to implement Executive Order 11988,
as amended and will continue to use the 8-step process to monitor and
verify compliance with the FFRMS. To monitor and evaluate the
implementation of the FFRMS, FEMA will continue to rely on step 8 of
the 8-step process. Step 8 of the process found at 44 CFR 9.6(b)(8)
requires FEMA to review the implementation and post-implementation
phases of the proposed action to ensure that the requirements stated in
Sec. 9.11 are fully implemented. Oversight responsibility is
integrated into existing processes for each grant program. For each
approved action, grant assistance is generally conditioned to follow
the requirements determined
[[Page 56980]]
during the 8-step process. FEMA is not making changes to paragraph
(b)(8) of Sec. 9.6 in the final rule and will continue to use the
current process to ensure compliance with the FFRMS. To address
commenters' concerns regarding how the agency would address non-
compliance, FEMA will rely on the provisions of 2 CFR part 200. 2 CFR
200.339 also allows FEMA to take action to remedy a recipient's
noncompliance with federal requirements, including those required by 44
CFR part 9, such as imposing new conditions on the award or
deobligating funding for the award if a recipient does not adhere to
the requirements set forth during the part 9 review process. Disputes
regarding compliance would follow the specific grant program's appeals
process.\219\
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\219\ FEMA's appeals and arbitrations process for PA can be
found at 44 CFR 206.206 and HMGP's appeals process can be found at
44 CFR 206.440.
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Costs and Delays
Comments: Some commenters had questions regarding the costs
associated with FFRMS implementation and whether or not implementation
would result in delaying actions subject to the FFRMS. Some of these
commenters raised specific concerns about increased costs. One
commenter stated there would be a significantly increased cost of
compliance for Federally funded projects as a result of the rule and
stated the Federal government should bear the full cost of FFRMS
implementation. The commenter also asked whether the FFRMS would be
adopted for FEMA funding only or for all Federal agencies and whether
the FFRMS would apply to Federally funded projects that are focused on
flood damage reduction projects. Another commenter stated the FFRMS
implementation, through higher vertical elevation or floodproofing, or
other mitigation mandates, could significantly alter and raise the cost
of water resource projects and ongoing operations and maintenance for
water resources infrastructure systems, which were paid for by the
local taxpayers. The commenter asked how the FFRMS would interface with
other Federal agencies and impact non-Federal sponsor responsibilities
for projects. A third commenter stated concern for the increased costs
of meeting heightened standards and recommended FEMA identify
opportunities to expand the agency's grants and otherwise reduce local
costs to help ensure the new resilience standard did not prevent
projects from going forward.
Two commenters raised concerns regarding equity and costs. One
commenter stated the rule would increase the costs of Federally-funded
projects and that while the higher standards would help decrease costs
to the community and residents in the long term, the higher short-term
costs could have the unintended effect of making needed projects
infeasible, especially for communities of low-to middle-class incomes
and taxbases. This commenter recommended FEMA work to increase funding
to implement FFRMS through increasing grant funding cap ceilings,
expanding funding opportunities, and lowering cost share requirements.
Another commenter stated both the rule and FFRMS policy would
potentially raise costs associated with Federal actions and implement
ambiguous standards ill-suited to rural areas. The commenter stated the
rule and FFRMS policy raised design standards for Federal actions,
which would affect mitigation and public assistance projects for post-
disaster recovery. The commenter stated the elevated design standards
would increase project costs and these increased costs would be
absorbed into applications and proposals for these projects. The
commenter wrote that these projects already had limited available
funding and were often prohibitively competitive for rural communities,
creating an additional burden on these applicants.
FEMA Response: FEMA appreciates the commenters' concerns on the
increased costs of projects and the commenter's requests to expand
grant funding and grant funding caps, as well as lowering cost-share
requirements. The cost of compliance with the FFRMS will be included in
the total project costs and will be funded at each program's applicable
cost-share. Some FEMA programs are capped in funding each year, thus,
the additional costs of FFRMS requirements would not add to the total
funding for these programs. The effects of the FFRMS requirements would
be distributional within the existing funding caps and would not
constitute new spending by FEMA. For disaster programs where funding is
not capped, the application of the FFRMS will increase the total amount
of funding provided under the program, and each project will be subject
to the applicable cost-share. Cost-share requirements are determined
consistent with specific grant program requirements.
As explained above, the FFRMS is only applicable to actions
involving the use of Federal funds for new construction, substantial
improvement or to address substantial damage to a structure or
facility. This rulemaking is applicable only to FEMA-funded projects
for FEMA programs such as IA, PA, and HMA, and grants processed by
FEMA's GPD. This includes some flood damage reduction projects.
FEMA has always incorporated social concerns and economic aspects
into the 8-step process as part of the practicability analysis. FEMA's
revisions to part 9 reflect consideration of the type and criticality
of the action involved, the availability and actionability of the data,
and equity concerns in the implementation of Executive Order 11988, as
amended. FEMA also has an agency-wide initiative focused on reducing
barriers and increasing opportunities so all people, including those
from vulnerable and underserved communities, can get help when they
need it.\220\ FEMA reviews all proposed FEMA-funded actions for
potential disproportionate and adverse human health and environmental
effects on communities with environmental justice concerns using a
standardized environmental justice compliance review process.
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\220\ See https://www.fema.gov/emergency-managers/national-preparedness/equity (last accessed Jan. 24, 2024).
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FEMA disagrees with the commenter's suggestion that the FFRMS is
ill-suited to rural areas, as disasters impact all areas and flooding
continues to increase across the United States, including in rural
areas.\221\ Rather, these areas can benefit from Federal investments
that are more resilient to flooding. FEMA believes the FFRMS will
ensure that Federal funding will result in more resilient rural
communities, without overly burdening these communities as they seek to
recover. While FEMA acknowledges some of the agency's grant programs
have cost share requirements and that competition exists for FEMA
funding, the agency has programs in place to assist rural and other
disadvantaged communities.\222\
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\221\ Information on FEMA disaster and other declarations, see
https://www.fema.gov/disaster/declarations (last accessed Mar. 27,
2024). For FEMA disaster and other declarations specific to the
commenter, see https://www.fema.gov/disaster/declarations?field_dv2_declaration_date_value%5Bmin%5D=2019&field_dv2
_declaration_date_value%5Bmax%5D=2024&field_dv2_declaration_type_valu
e=All&field_dv2_incident_type_target_id_selective=All&field_dv2_state
_territory_tribal_value%5B%5D=MT (last accessed Mar. 27, 2024).
\222\ For example, see FEMA, Press Release, Biden-Harris
Administration Announces Nearly $2 Billion in Available Funding to
Increase Climate Resilience Nationwide, https://www.fema.gov/press-release/20231012/biden-harris-administration-announces-nearly-2-billion-available-funding (last accessed Mar. 27, 2024) (``As part
of the Administration's Justice40 initiative, the BRIC and FMA
programs aim to deliver 40 percent of their overall benefits to
disadvantaged communities that are marginalized, overburdened by
pollution, and underserved . . . FEMA is providing up to 90 percent
federal cost share for FMA in disadvantaged communities, relative to
a standard cost share of 75 percent. Designated Community Disaster
Resilience Zones (CDRZs) are eligible for up to 90 percent federal
cost share for BRIC, relative to a standard cost share of 75 percent
. . . FEMA continues to not require a Benefit-Cost Analysis as a
condition to apply for an Economically Disadvantaged Rural
Community, federally recognized tribal government, or a subapplicant
with a hazard mitigation project within or primarily benefiting a
Community Disaster Resilience Zone. FEMA will review the hazard
mitigation project subapplications that are eligible for selection
and may assist such communities with developing a BCA.'').
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[[Page 56981]]
Comment: Two commenters stated concerns with delays. One commenter
stated concerns with project delays regarding FEMA making the final
decision on the information the applicant would use and making the
final decision on how permitting agencies were processing and
permitting federal actions. Another commenter raised similar concerns
regarding permitting, stating the proposed rule and policy would create
separate permitting standards for some Federal and non-Federal actions,
adding complexity that necessitated additional expertise when
administering local floodplain programs and disproportionately
impacting rural communities that already lacked sufficient staffing and
funding to administer these programs. This commenter also stated the
proposed rule and policy would also lengthen project timelines for
Federal actions. The commenter stated that FEMA making the decisions on
both the information the applicant is using and how permitting agencies
would process and permit Federal actions. The commenter stated this
would add time, documentation, and coordination between local
communities, project proponents, stakeholders, and even FEMA, for
critical mitigation projects and urgent post-disaster recovery efforts
that required expedience. The commenter requested that FEMA minimize
red tape and expense for communities seeking to implement projects, as
the proposed rule adds bureaucracy and increases the resources required
to successfully implement meaningful projects.
Another commenter raised concerns regarding both costs and delays,
requesting further clarification on whether the FFRMS allowed for FEMA
funding to cover expenses associated with making necessary improvements
and enhancements to roadways, bridges, and culverts or if the funding
was only for the in-kind replacement of structures. The commenter
stated additional funding should be considered for the delay in project
delivery due to the application of the FFRMS.
FEMA Response: FEMA appreciates the commenters' concerns regarding
project delays and costs. FEMA notes the determination on the
information the applicant is using under part 9 has always been made by
the agency and thus, FEMA does not anticipate administrative delays
with projects as a result of that aspect of FFRMS implementation. The
time taken to complete the 8-step process will be project specific.
Additional time, documentation, and coordination may be necessary for
projects subject to the FFRMS (i.e., actions that involve new
construction, substantial damage, or substantial improvement as they
are typically the most complex types of actions that FEMA funds). As
part of the final rule, FEMA adjusted for inflation certain thresholds
that determine which actions are exempt from, or subject to, an
abbreviated 8-step process. FEMA will also establish a procedure for
future annual adjustments of these thresholds. The thresholds enable
FEMA to exempt or expedite the requirements of 44 CFR part 9 by
streamlining the process for those actions that offer little
opportunity for alternate locations or actions, or minimization, due to
practicability. These changes may mitigate, as to smaller projects,
timing concerns raised by the commenters.
Regarding permitting actions, FEMA will provide additional guidance
for the public and SLTT partners identifying what the FFRMS is, and how
the agency will implement the updates to part 9 to assist applicants
for FEMA-funded assistance programs. FEMA's regional offices will also
provide technical assistance as part of the rule's implementation. For
those SLTT entities that may be permitting actions, as explained above,
FEMA's role under 44 CFR part 9 has not changed with this rule. The
changes made in this final rule are to implement updates to Executive
Order 11988, as amended, and to otherwise update the 8-step process.
Changes related to the floodplain determination implementing the FFRMS
will only be applicable to those actions subject to the FFRMS as
defined in the rule. FEMA notes this final rule does not apply to a
local community's permitting processes under the NFIP's floodplain
management regulations. Those regulations are found at 44 CFR part 59
et seq.
FEMA understands the final commenter's concerns regarding
applicability of this rulemaking to improvements and enhancements to
roadways, bridges, and culverts, as well as in-kind replacement of
structures. In each scenario presented by the commenter, FEMA's funding
is based on actual project costs for any FEMA-funded project. FEMA
understands that any project may be delayed due to a variety of
factors, and increased costs associated with those delays are generally
part of the actual project costs. Additional costs incurred to comply
with FFRMS would be eligible for FEMA funding.
Timing
Comment: Two commenters commented on the timing for implementing
the rule. One commenter stated concern that the proposed changes could
significantly restrict ongoing work. The commenter stated the proposed
rule and policy did not identify when it would become effective, or how
it would affect projects related to ongoing recovery efforts. The
commenter requested the effective date be clarified and implemented so
as to not disrupt ongoing recovery efforts. The other commenter
requested FEMA consider ``grandfathering'' clause similar to the one
provided in Executive Order 11988.
FEMA Response: FEMA is issuing this final rule with an effective
date of September 9, 2024. As explained in Sec. 9.5(a)(3), FEMA will
apply the FFRMS only to new actions for which assistance is made
available pursuant to declarations under the Stafford Act that are
commenced on or after the effective date of the final rule, and new
actions for which assistance is made available pursuant to notices of
funding opportunity that publish on or after the effective date of the
final rule. Ongoing projects will not be impacted by this final
rule.\223\ FEMA does not believe a grandfathering clause is needed for
this rulemaking.
---------------------------------------------------------------------------
\223\ Note that FEMA first partially implemented the FFRMS by
policy with respect to covered projects in existing floodplains in
its Public Assistance and Hazard Mitigation Assistance programs. See
FEMA Policy 104-22-003, ``Partial Implementation of the Federal
Flood Risk Management Standard for Public Assistance (Interim),''
June 3, 2022 found at https://www.fema.gov/sites/default/files/documents/fema_fp-104-22-0003-partial-implemetnation-ffrms-pa-interim.pdf (last accessed Jan. 24, 2024) and FEMA Policy 206-21-
003-0001, ``Partial Implementation of the Federal Flood Risk
Management Standard for Hazard Mitigation Assistance Program,'' Dec.
7, 2022 found at https://www.fema.gov/sites/default/files/documents/fema_policy-fp-206-21-003-0001-implementation-ffrms-hma-program_122022.pdf (last accessed Jan. 24, 2024). Some current FEMA
actions may be subject to these partial implementation policies;
however, those actions would not be subject to this final rule or
policy.
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[[Page 56982]]
Metrics
Comments: Two commenters requested FEMA develop metrics for the
rule and policy implementation. One commenter stated that creating
metrics was essential. The commenter noted that the proposed policy
outlined objectives but lacked specific metrics to gauge progress
towards achieving them. The commenter stated the absence of suitable
metrics guaranteed a transition into subjective assessments, making it
impossible to balance trade-offs among objectives. The commenter
recommended that FEMA establish appropriate metrics to ensure objective
evaluation and avoid subjective interpretations. The commenter
requested that FEMA include measurable metrics in the policy statement,
allowing for a quantifiable assessment of advancement toward achieving
well-defined and substantiated objectives.
Another commenter agreed that the policy statement establishes
objectives without setting metrics for measuring progress towards those
objectives. The commenter wrote the proposal was unbalanced, as it was
confined almost exclusively to restrictions on floodplain occupancy and
use, with no policy objective promoting economic development or even
economic development rationally constrained by other considerations.
The commenter stated that it is difficult to understand how the
proposed regulation would be useful given the proposal's narrow focus
on constraints and restrictions. The commenter wrote that although FEMA
stated that the FFRMS would promote resilience, the NPRM apparently
reflected FEMA's perspective that economic development had no place in
resilience. The commenter recommended that the proposal be modified to
establish the objective of economic efficiency in floodplain use and
occupancy, while giving appropriate weight to the constraints on
efficiency and development already inherent in the policy statement.
Similar to the other commenter, this commenter stated that the proposal
should be modified to express the metrics that would be used in
establishing quantifiable progress toward clear and supported
objectives. The commenter wrote that failing to establish appropriate
metrics assured the effort would devolve into subjective evaluations
where trade-offs among objectives became impossible.
FEMA Response: FEMA understands the commenters' concerns regarding
measuring the effectiveness of the rule and policy; however, the agency
disagrees that measurable metrics must be included in the regulation or
policy to do so. FEMA disagrees that the absence of such metrics will
result in subjective interpretations for the effectiveness of the rule
and policy, as well as the FFRMS implementation for each action. FEMA's
8-step process and the results of the process are documented, and each
applicant receives this information as part of the agency's compliance
process.\224\ FEMA will evaluate the effectiveness of the rule and
policy as part of the agency's role in the IWG to reassess the FFRMS.
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\224\ See Environmental Planning and Historic Preservation
Responsibilities and Program Requirements, available at https://www.fema.gov/sites/default/files/2020-07/fema_ehp_requirements_2018.pdf (last accessed Mar. 27, 2024).
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FEMA disagrees with the commenter that the rule and policy do not
consider economic development. Consistent with Executive Order
14030,\225\ the FFRMS will prioritize Federal investment and conduct
prudent financial management of Federal government resources to
mitigate climate-related financial risk, while accounting for and
addressing equity considerations and economic impacts. For individual
actions, FEMA identifies and evaluates practicable alternatives to
carrying out a proposed action in floodplains or wetlands. In
determining the practicability of the alternatives, social concerns and
economic aspects are considered in Sec. 9.9. These requirements ensure
that FEMA's approach to floodplain use entails consideration of
specific community needs.
---------------------------------------------------------------------------
\225\ ``Climate-Related Financial Risk,'' 86 FR 27967 (May 20,
2021).
---------------------------------------------------------------------------
Finally, FEMA disagrees with the commenter that the agency does not
consider economic development, as the 8-step process requires a
practicability analysis that considers factors including economic
aspects. FEMA thus does not believe the agency needs to revise the
FFRMS policy's principles or the rule's policy statements to ensure
economic aspects are considered.
Appeals Process
Comments: Three commenters requested FEMA provide an appeals
process. Two commenters wrote there was no viable process available to
non-Federal entities to seek a review and adjudication of decisions
made under the FFRMS. The commenters stated the impacts of the FFRMS
would not be confined to the Federal government but would have far-
reaching impacts on non-Federal public entities and the private sector.
The commenters noted that Federal taxpayers should be protected from a
Federal standard likely to impose costs without being subject to a
benefits justification. The commenters recommended an appeals process
be made available to non-Federal entities to review and adjudicate
decisions made under the FFRMS. The third commenter requested an
appeals process for communities that disagreed with a determination
using the FFRMS. The commenters stated an appeals process would provide
transparency and enable communities to have a voice in these important
decisions that significantly impact them.
FEMA Response: FEMA does not believe a separate appeals process is
required under part 9. FEMA conducts the 8-step process collaboratively
with participation from applicants and grant program staff, with
applicants having responsibility to provide information and participate
in the process.\226\ This collaborative process allows for resolution
of disagreements and for FEMA to provide technical assistance on the
requirements of 44 CFR part 9. FEMA hopes to be able to resolve
disagreements during this process so that a project may be made
eligible. However, if a grant applicant disagrees with the application
of the FFRMS and is subsequently denied funding for the project, the
applicant should be able to avail itself of FEMA's existing appeals
processes for its grant programs.\227\ FEMA understands the commenter's
concern regarding community participation but believes the current 8-
step process sufficiently engages the public. FEMA will continue to
notify the public at the earliest possible time of the intent to carry
out an action in a floodplain or wetland and involve the affected and
interested public in the decision-making process, as detailed further
in Sec. 9.8. Further, communities provide input into the floodplain
determination for part 9. Pursuant to 44 CFR 9.11(d)(6), if there is a
more restrictive Federal, State, or local standard, it will be used.
This includes the use of local CISA data and methods that have been
adopted by a community for use in floodplain management, as long as
such data results in a more
[[Page 56983]]
restrictive standard. FEMA values additional input from SLTT partners
and the public in the 8-step process.
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\226\ See 44 CFR 9.16, 9.17.
\227\ See, e.g., 2 CFR 200.339 and 200.342; see also 44 CFR
206.206 (appeals and arbitration process for PA), 44 CFR 206.115
(appeals process for IA), 44 CFR 206.440 (HMGP and HMGP Post-Fire's
appeals process); and ``Hazard Mitigation Assistance Program and
Policy Guide,'' pg. 211-216, 229-234, 240-241, and 247 available at
https://www.fema.gov/sites/default/files/documents/fema_hma_guide_08232023_v1.pdf (last accessed April 2, 2024)
(appeals process for HMGP, HMGP Post-Fire, BRIC, and FMA), ``Public
Assistance Program and Policy Guide, pgs. 39-41 available at https://www.fema.gov/sites/default/files/documents/fema_pappg-v4-updated-links_policy_6-1-2020.pdf (last accessed Mar. 12, 2024).
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Regarding cost concerns, FEMA completed an analysis of the economic
impact of this rulemaking, and the agency believes that the benefits of
preventing property damage and potentially saving lives justify the
costs of the rule. These benefits are a result of the improved
protection of structures and facilities due to increased elevation and
floodproofing standards in FEMA's implementation of the FFRMS. This
rule will help to ensure that Federal investments are better protected
from flood damage, and that the natural values of floodplains are
preserved.
Other Implementation Concerns
Comments: One commenter requested the rule require consideration of
ways to prevent groundwater contamination when managing floodwater for
use in water supply storage. The commenter suggested that the rule
include provisions to pretreat or avoid the injection of ``the first
flush of stormwater runoff (generally the first runoff from 1.5 inches
of rainfall), which can contain potential pollutants. The commenter
also requested the rule acknowledge that MAR-related activities could
be subject to other State and/or Federal regulations. Another commenter
stated certain requirements for minimum conveyance, storage, and design
criteria would be needed for all regional projects and watershed
projects to ensure Federal funding eligibility with FFRMS
implementation.
FEMA Response: FEMA understands the commenters' concerns but
disagrees that any changes to the rule are required to ensure
consideration of these issues. As previously explained, impacts are
considered during the 8-step process including those referenced by the
commenters. These considerations are not changing as part of this final
rule and will continue to be utilized by FEMA when completing the
analysis.
Further, Part 9 applies only to FEMA actions, and the FFRMS applies
only to those actions where FEMA funds are used for new construction,
substantial improvement, or to address substantial damage to a
structure or facility for FEMA programs such IA, PA, and HMA, and
grants processed by FEMA's GPD. Where applicants seek FEMA funding
through these programs for the actions the commenters reference, part 9
applies.
Regarding a need to adapt design criteria, the FFRMS is a
resilience standard that is applicable to structures and facilities.
When considering design criteria, and particularly in cases where
elevation as a minimization measure may not be feasible or appropriate
for facilities, the FFRMS floodplain, determined according to the
process described in section C of the FFRMS policy, establishes the
level to which a structure or facility must be resilient. Resilience
measures include using structural or nonstructural methods to reduce or
prevent damage; elevating a structure; or, where appropriate, designing
it to adapt to, withstand and rapidly recover from a flood event. To
the extent practicable and in accordance with applicable grant program
requirements, projects for facilities located within a FFRMS floodplain
must be designed to help ensure resilience against flooding up to the
flood elevation of the FFRMS floodplain.
Comment: A commenter requested the exception process for the FFRMS
allow for appropriate balancing of the community's overall public
health and safety priorities in project decisions. The commenter gave
an example of a hospital being limited in making critical improvements
because of the cost to incorporate the FFRMS as an example of where the
community's overall well-being might be impacted.
FEMA Response: FEMA disagrees that a separate exception process is
needed given the flexibility of the 8-step process. For individual
actions, FEMA identifies and evaluates practicable alternatives to
carrying out a proposed action in floodplains or wetlands. In
determining the practicability of the alternatives, social concerns and
economic aspects such as those raised by the commenter are considered
in Sec. 9.9.
FEMA will continue to notify the public at the earliest possible
time of the intent to carry out an action in a floodplain or wetland
and involve the affected and interested public in the decision-making
process, as detailed further in Sec. 9.8. FEMA values additional input
from SLTT partners and the public in the 8-step process to help ensure
FEMA actions meet community needs. FEMA notes any increased costs are
generally eligible for funding under FEMA's assistance programs subject
to cost share requirements.
2. Coordination With Other Federal Agencies
Commenters had questions about how FEMA would coordinate with other
Federal agencies when implementing the FFRMS. Commenters raised
questions and concerns with how FEMA would work with other Federal
agencies to implement the FFRMS and the interaction between the FFRMS
and other programs such as the NFIP.
Comments: Commenters requested FEMA provide more information on how
FEMA would complete coordination with other Federal agencies. A
commenter requested clarification on how the agency would coordinate
with other Federal agencies, and State and local governments to ensure
consistent implementation of the FFRMS. One commenter asked how the
primary agency would be determined and stated that many local agencies
would not have the capability and capacity to navigate through
different federal agencies with differing requirements for FFRMS
implementation. Another commenter requested the proposed rule reconcile
which agency's FFRMS procedures would be applied for projects with more
than one Federal funding source. This commenter stated the NPRM did not
provide a process to reconcile difference in requirements from
different agencies and stated the differences between agencies that
have already published FFRMS proposals. The commenter requested FEMA
assure harmonization in the FFRMS criteria application across the
Federal government. One commenter stated FEMA must also account for the
central role that SLTT governments play in floodplain management,
including designing climate resilience actions and implementing
regulations. The commenter wrote consistent that expectations and
procedures would benefit all sides by expediting interagency
coordination and reducing confusion, delays, and accidental
noncompliance.
FEMA Response: FEMA understands the concerns associated with
consistent application of the FFRMS, and FEMA's FFRMS policy provides
details on how FEMA will coordinate with other agencies when
implementing actions in the same area as another Federal agency. See
Section H, page 9. Specifically, FEMA's FFRMS policy states that when
coordinating with other Federal agencies, FEMA will generally default
to the FFRMS policy approach in FEMA's FFRMS policy, as appropriate. In
addition, per 44 CFR 9.11(d)(6), actions must be consistent with the
NFIP, as well as any more restrictive Federal, State, or local
floodplain management standards. Those floodplain management standards
may include a more restrictive application of another Federal agency's
FFRMS approach.
Additionally, FEMA's interagency consultative role in the broader
implementation of the FFRMS across the Federal government, through the
[[Page 56984]]
agency's participation in the Interagency Working Groups and the FIFM-
TF helps ensure consistent and effective implementation across the
Federal government. FEMA's work in that context is intended to address
the types of concerns raised in the comment regarding harmonizing
application of the FFRMS criteria across the Federal government.
Executive Order 11988, as amended, further establishes the process by
which the FFRMS will be reassessed in an interagency manner in
conjunction with the WRC, the MitFLG, and the FIFM-TF. See Section 4(a)
and (b).
FEMA understands the concerns raised by the commenters regarding
local capability and capacity, and the agency will distribute
additional resources to SLTT partners and the public identifying what
the FFRMS is, and how the agency will implement the Executive Orders to
assist applicants of FEMA-funded assistance programs. FEMA will also
provide technical assistance through the agency's regional offices to
support the FFRMS implementation. Additionally, FEMA notes the agency
does consider the central role that SLTTs play in floodplain
management. FEMA conducts the 8-step process collaboratively with
participation from SLTT partners and grant program staff, with
responsibilities and requirements for applicant participation in the 8-
step process outlined in the long-standing requirements of 44 CFR 9.17.
FEMA also recognizes the role played by SLTTs in setting floodplain
management standards for their communities. Pursuant to 44 CFR
9.11(d)(6), a more restrictive Federal, State, or local standard will
be used. FEMA believes the final rule and FFRMS policy outline
consistent expectations and procedures for application of the 8-step
process, minimizing confusion, delays, and accidental noncompliance.
Coordination With Specific Agencies
Comments: Some commenters encouraged FEMA to engage with specific
agencies when implementing FFRMS. One commenter encouraged FEMA to
coordinate with other Federal agencies, such as HUD, SBA, USDA, DOE,
DoD, to improve application and effectiveness of national floodplain
standards. Another commenter suggested Federal agencies, including
FEMA, NRCS, FWS, and others examine the efforts of Federal agencies to
restore floodplains. The commenter stated their understanding that even
for Federal agencies responsible for addressing water, soil, and
habitat concerns, floodplain regulations are a significant barrier to
restoration. The commenter stated the review of floodplain restoration
efforts should not only cover the multi-million-dollar projects, but
also include smaller-scale projects, as there are plenty of
opportunities for small scale, impactful restoration projects that
become too costly when implemented consistent with a regulatory
process.
Another commenter requested that FEMA take a leadership role in
tracking floodplain development on a national scale. The commenter
stated there was no meaningful Federal commitment to track gains or
losses in floodplain functions in the same way wetlands are tracked
through the National Wetlands Inventory. The commenter referenced an
estimate that 70 percent of the nation's floodplains had poor integrity
due to development and alterations that limited floodplain
functionality. The commenter noted this estimate provides a snapshot,
but that it is essential to have nationwide statistics that allowed
decision makers to understand and communicate floodplain loss. The
commenter stated that floodplains are not broadly recognized by the
public or decision makers for the valuable benefits they provide, and
the lack of comprehensive, nationally-led data and analysis for
floodplain functions has resulted in disjointed and unstable efforts
focused on policy, funding, and communication in support of protecting
and restoring floodplains in the United States, as well as a lack of
data that allows an analysis of the impact that Executive Order 11988
has played. The commenter requested that FEMA, as the lead Federal
agency charged with implementing a national floodplain management
strategy, take a leadership role in tracking loss of functional
floodplains as a component of the 8-step process when implementing
Executive Orders 11988 and 13690. The commenter encouraged FEMA to work
with HUD, the United States Geological Survey, the USACE, and other
Federal agencies to track and quantify the effectiveness of the
Executive Orders in avoiding floodplain development and preserving and
restoring the natural and beneficial values of functional floodplains.
FEMA Response: FEMA's interagency consultative role in the broader
implementation of the FFRMS across the Federal government, through the
agency's participation in the Interagency Working Groups and the FIFM-
TF helps ensure consistent and effective implementation. In this role,
FEMA has coordinated, and will continue to coordinate, with other
Federal agencies, including those listed by the commenters, on the
FFRMS. Executive Order 11988, as amended, further establishes the
process by which the FFRMS will be reassessed in an interagency manner
in conjunction with the WRC, the MitFLG, and the FIFM-TF.\228\ See
Section 4(a) and (b).
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\228\ 80 FR 6425 (Feb. 4, 2015).
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For individual actions subject to the FFRMS, FEMA will continue to
coordinate with other agencies to expedite and unify the floodplain
management review process, as detailed in the FFRMS policy. FEMA
appreciates the commenter's concerns regarding floodplain restoration,
but notes that the commenter's request for multiple Federal agencies to
do a retrospective review of their efforts to restore floodplains is
beyond the scope of this rulemaking, which involves updates to FEMA
floodplain management regulations to implement the FFRMS. FEMA's
regulations at part 9 address the commenter's concerns regarding the
need to protect floodplains. Specifically, Sec. 9.2 discusses the
agency's policy to ``restore and preserve the natural and beneficial
values served by floodplains.'' The final rule strengthens this policy
by requiring the use of nature-based solutions when identified as a
practicable alternative during the 8-step process as outlined in 44 CFR
9.9(b)(2). Further, Sec. 9.11(b) discusses how FEMA will take action
to restore and preserve floodplains and wetlands. FEMA understands the
need to include smaller-scale projects and the commenter's concerns
regarding costs when complying with regulatory requirements but
believes the rule and FFRMS policy helps address these considerations.
The rule and FFRMS policy require FEMA to consider the type of
criticality of the action involved, the availability and actionability
of data, and equity concerns. Actions are only subject to the FFRMS if
FEMA funds are used for new construction, substantial improvement, or
to address substantial damage to a structure or facility.
FEMA understands the commenter's concerns regarding tracking
floodplain development and the lack of a national inventory for
floodplains similar to the National Wetlands Inventory. FEMA agrees
that nationwide statistics could better support decision makers and
encourages other Federal agencies to look across the spectrum of
floodplain impacts for their own agency activities. However, FEMA has
no statutory authority to mandate the more structured tracking system
the commenter requests across the Federal government.
[[Page 56985]]
FEMA completed that analysis for the FFRMS consistent with its
requirements under OMB Circular A-4. FEMA considered the costs and
benefits associated with this rule, including the overall increased
costs of FEMA projects, in the regulatory impact analysis provided on
the public docket for this rulemaking.\229\ FEMA believes that the
benefits of preventing property damage and potentially saving lives
justify the costs of the rule. These benefits are a result of the
improved protection of structures and facilities due to increased
elevation and floodproofing standards in FEMA's implementation of the
FFRMS. This rule will help to ensure that Federal investments are
better protected from flood damage, and that the natural values of
floodplains are preserved.
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\229\ See https://www.regulations.gov/document/FEMA-2023-0026-0013.
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Pursuant to OMB Circular A-4, agencies are required to monetize
quantitative estimates whenever possible; however, if monetization is
impossible, the agency must explain why and present all available
quantitative information. An agency should also provide a description
of the unquantified effects and the strengths and limitations of the
qualitative information. FEMA requested public comments throughout the
RIA because it was aware of the limitations of the data used to
estimate the costs and benefits of the rule. FEMA's intention was to
give the public the opportunity to submit data that was not available
to FEMA at the time of publication of the NPRM but could help improve
the estimates made for the final rule.
FEMA recognized in both its NPRM and RIA that there was a lack of
actionable climate data for the FFRMS. FEMA expects that more data will
be available as agencies implement the FFRMS, and that will be
incorporated into interagency tools. FEMA further recognized that there
was a limited amount of data available on the monetized benefits of
freeboard that would be affected by the rule and requested comments
from the public about whether there was available data that could be
used for such estimates. FEMA conducted a quantitative benefits
analysis for PA. Due to the limited quantitative analysis, FEMA also
completed a qualitative analysis to meet its obligations under OMB
Circular A-4 with respect to benefits by including the following: (1)
literature reviews on the benefits of flood mitigation activities; (2)
reports which analyzed potential savings from damage avoidance
associated with including freeboard in the construction of new
residential structures in coastal areas at various freeboard levels;
and (3) a description of qualitative benefits which included the
potential for lives saved, savings in time and money from a reduced
recovery period after a flood, increased safety of individuals,
increased public safety, reduced personal and community impacts, and
reduction in future health issues related to flooding.
With respect to the overall costs for the rule, FEMA met its
obligations under OMB Circular A-4 by producing qualitative and
quantitative measurements of the cost of the application of the FFRMS
by each grant program. FEMA notes any increased costs for FEMA actions
are generally eligible for funding under FEMA's assistance programs
subject to cost share requirements.
Comment: One commenter raised several questions about the
implementation of FFRMS for roadways, bridges, and culverts and how
FEMA would engage with other Federal and non-Federal agencies. The
commenter raised several questions about how the FHWA and the
Department of Transportation (DOT) regulations would interact with
FEMA's FFRMS implementation and requested FHWA regulations apply to
these actions. The commenter raised questions on the use of State
regulations and asked how the FFRMS would impact scour calculations and
designs. The commenter asked how FEMA would determine when a nature-
based approach would be used, stating that FHWA and many States had
their own guidance for the use of nature-based approaches. The
commenter also stated all of the FFRMS approaches indicated higher
vertical flood elevations and an expanded horizontal floodplain and
inquired as to whether elevating a structure would also include
potential roadway grade changes and raising a bridge structure if
viable for resilience as some locations.
FEMA Response: As explained previously, this rulemaking only
applies to actions where FEMA funds are used for new construction,
substantial improvement, or to address substantial damage to a
structure or facility under FEMA programs such as IA, PA, and HMA
programs, and grants processed by FEMA's GPD. FEMA does not fund
repairs or improvements to Federal-aid roads, and this rulemaking would
not be applicable to those roads. Rather, as the commenter states, the
FHWA regulations would govern those actions. Where FEMA may provide
funding, FEMA's FFRMS policy provides details on how FEMA will
coordinate with other agencies when implementing actions in the same
area as another Federal agency. See Section H, page 9. When
coordinating with other Federal agencies, FEMA will generally default
to the FFRMS policy approach in FEMA's FFRMS policy, as appropriate.
Where FEMA provides funding for these activities, FFRMS applies to
improve resilience to facilities against both current and future flood
risks.
Section 9.11(d)(6) of the final rule states that even when FEMA is
providing funding, a more restrictive Federal, State, or local
floodplain management standard will be applied. States with more
restrictive standards continue to govern these actions. Section G.2 of
FEMA's FFRMS policy further discusses flood risk minimization for
facilities and clarifies that FEMA would allow any specific method to
be used to help ensure resilience against flooding up to the flood
elevation of the FFRMS floodplain in conjunction with any other
applicable codes and standards.
In response to the commenter's concerns regarding nature-based
approaches and conflicts with other Federal and State requirements,
Section A.2 of FEMA's FFRMS policy states ``Applicability: The Natural
Features and Nature-Based Solutions requirements of this policy apply
to all Actions subject to the full 8-step decision-making process.'' As
explained in Section F, it should be used where possible.\230\
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\230\ See Section F of the FFRMS Policy, ``Where possible, the
Agency shall use natural systems, ecosystem processes, and nature-
based solutions.''
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To address the commenters inquiry on whether roadway grade changes
and raising a bridge structure would be required, FEMA begins any
analysis by confirming applicability. As defined in Sec. 9.4, a
``structure'' means walled and roofed buildings, including a temporary
housing unit (manufactured housing) or a gas or liquid storage tank.
The example provided by the commenter is not a structure under part 9
but rather a facility. As section G.2 of FEMA's FFRMS policy states,
``[t]he FFRMS is a resilience standard. Particularly in cases where
elevation may not be feasible or appropriate for facilities, the FFRMS
floodplain, determined according to the process described in section C
of this policy, establishes the level to which a structure or facility
must be resilient. Resilience measures include using structural or
nonstructural methods to reduce or prevent damage; elevating a
structure; or, where appropriate,
[[Page 56986]]
designing it to adapt to, withstand and rapidly recover from a flood
event.'' \231\
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\231\ See https://www.regulations.gov/document/FEMA-2023-0026-0005.
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Coordination With Non-Federal Agencies
Comments: A commenter recommended FEMA engage through comprehensive
consultations with local governments, non-Federal stakeholders, and
regional experts to gather insights and refine the currently proposed
national approach to ensure that policies aligned with regional
differences and addressed specific challenges identified by
stakeholders. The commenter also recommended FEMA develop a robust
communication strategy to clarify the integration of local government
systems and policy implementation with non-Federal stakeholders, while
also creating a means of providing feedback throughout the FFRMS
implementation process.
The commenter further stated that the roles, responsibilities, and
authorities of non-Federal sponsors of actions might not align with
FEMA's FFRMS proposed policy and requested FEMA clarify how non-Federal
sponsors and other stakeholders would engage with and be affected by
the rule. The commenter noted collaboration between non-Federal
sponsors, communities, the USACE, and FEMA can yield significant
benefits, but stated the collaboration was contingent on a clear,
justified, and achievable delineation of agency and stakeholder roles
and responsibilities. The commenter stated the FFRMS proposed rule and
policy failed to address the roles of non-Federal stakeholders, which
could significantly hinder non-Federal stakeholders' understanding of
their responsibilities within the FFRMS framework. The commenter stated
the FFRMS lacked an explanation of how the policy aligns with other
floodplain-related policies. The commenter stated that this oversight
might burden local non-Federal sponsors with additional
responsibilities related to addressing property damage and new
construction, potentially creating confusion and additional workload,
and importantly, likely forcing non-Federal sponsors to assume duties
outside their legal authorities and core competencies, and expose them
to potential liability.
The commenter recommended that FEMA provide greater clarity on the
roles of State and local government and other non-Federal stakeholders.
The commenter requested that FEMA consider and accommodate the resource
and legal boundaries of non-Federal stakeholders, ensuring that
policies and directives were realistic and compatible with their
authorities and available resources and tailoring requirements that
align with the authorities of non-Federal stakeholders. The commenter
stated this entailed revising policies to avoid mandating actions that
fall outside the legal jurisdiction of non-Federal stakeholders.
FEMA Response: FEMA disagrees with the commenter that additional
engagement to refine the FFRMS is required. In addition to the comment
period in 2023, FEMA completed outreach regarding FFRMS in 2015 as part
of the development and publication of the Revised Guidelines, as well
as the agency's prior NPRM in 2016.\232\
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\232\ Established by the 2013 Climate Action Plan, the Climate
Task Force met with stakeholders from State, local, Tribal, and
territorial governments; private businesses; trade associations;
academic organizations; civil society; and other stakeholders to
develop and provide recommendations in November 2014. President's
State, Local, and Tribal Leaders Task Force on Climate Preparedness
and Resilience, Recommendations to the President, (2014), available
at https://obamawhitehouse.archives.gov/sites/default/files/docs/task_force_report_0.pdf at 7 (last accessed Jan. 24, 2024). FEMA,
acting on behalf of the MitFLG and consistent with Executive Order
13690, published a draft of the Revised Guidelines for notice and
comment on February 5, 2015 at 80 FR 6530. During the public comment
period, over 25 meetings were held across the country with State,
local, and Tribal officials and interested stakeholders to discuss
the Revised Guidelines. There were also 9 public listening sessions
across the country that were attended by over 700 participants from
State, local, and Tribal governments, and other stakeholder
organizations to discuss the Revised Guidelines. The final Revised
Guidelines were published on October 22, 2015 at 80 FR 64008. FEMA
published a notice of proposed rulemaking to implement FFRMS
initially in 2016 at 81 FR 57402 (Aug. 22, 2016) along with a notice
of availability and request for comment on a FFRMS policy at 81 FR
56558 (Aug. 22, 2016) and a notice of availability regarding a draft
report at 81 FR 64403 (Sept. 20, 2016).
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FEMA understands the commenter's concern regarding the role of non-
Federal partners, but that role in the 8-step process remains unchanged
as a result of this rulemaking. FEMA values the collaboration and
coordination with SLTT and other non-Federal partners in the 8-step
process and will continue to engage with stakeholders and the public
throughout the 8-step process to meet the needs of communities and
stakeholders impacted by FEMA actions subject to this rulemaking.
Specifically for applicants for federal financial assistance, 44 CFR
9.17 outlines the specific roles and responsibilities that exist for
them in the 8-step process.
Comment: The same commenter stated the rule lacked clarity on
integration with local government systems and communications regarding
policy implementation with non-Federal stakeholders. The commenter
stated this oversight raised doubts about adaptability and alignment
with existing regional policies, potentially leading to conflicts and
inefficiencies in implementation. The commenter raised concerns
regarding the removal of Flood Hazard Boundary Maps (FHBM) stating that
the removal resulted in a lack of clear alternatives or specific
evaluation methodologies tailored to different regions and thus failed
to ensure region-specific evaluations and risks in applying standards
uniformly across diverse regions. The commenter stated a ``one-size-
fits-all approach'' overlooked the complexity of regional flood
dynamics and other variabilities, leaving critical questions
unanswered. The commenter stated a tailored, regionally sensitive
strategy was imperative to ensure diverse regional needs and variations
were appropriately considered and integrated into any proposed
policies.
FEMA Response: FEMA understands the commenter's interest in
ensuring effective integration with local government systems and
communications with non-Federal stakeholders but disagrees that the
agency's rulemaking and FFRMS policy are lacking. Rather, the rule at
Sec. 9.11(d)(6) ensures the use of any local standard that may be
higher than that required under part 9 allowing for local differences
to be considered and implemented. The commenter further misunderstands
FEMA's edits to remove the term FHBM from the regulatory text. FEMA is
not eliminating FHBMs from the 8-step process. As explained in the
preamble to the NPRM, FEMA offers a range of flood risk products under
the NFIP and categorizes these products as ``regulatory'' or ``non-
regulatory.'' Regulatory flood risk products are created subject to
procedural due process requirements, contain basic flood information,
and are used for official actions such as identifying properties
subject to mandatory flood insurance purchase requirements, or
enforcing minimum building standards for construction in a floodplain
in NFIP participating communities. Non-regulatory flood risk products
are not tied to mandatory enforcement or compliance requirements for
the NFIP and expand upon basic flood hazard information. References to
FEMA's regulatory products under the NFIP, such as the FHBM, FIRM, and
FIS are being eliminated in the regulatory text to allow flexibility to
encompass the full range of NFIP products (both regulatory and non-
regulatory) available for use with the 8-step process. For example,
[[Page 56987]]
the existing Sec. 9.7(c) prescribes a sequence of steps to obtain the
floodplain, flood elevation, and other information needed.
FEMA has made, and will continue to make, floodplain determinations
partnering with applicants in the 8-step decision-making process. As
explained in the NPRM, FEMA will use best available information, which
may include information that is non-regulatory or FEMA preliminary
flood hazard data. To be designated as the best available information,
the information must be at least as restrictive as the information
provided by effective FIRMs. FEMA published the FFRMS Job Aid to
further explain how the agency will make these determinations with the
implementation of FFRMS.
Further, as previously explained, SLTTs can provide input into the
determination. As explained above, FEMA will use a more restrictive
Federal, State, or local standard for actions under part 9. This
includes the use of local CISA data and methods that have been adopted
by a community for use in floodplain management, as long as such data
results in a more restrictive standard. Allowing the use of local data
helps resolve the commenter's concerns that FEMA is not considering
regional flood dynamics and other variabilities.
3. Outreach
Comments: Two commenters discussed outreach associated with the
rulemaking process. One of the commenters expressed support for the
extensive public outreach completed between 2015 and 2021 on the FFRMS.
The other commenter requested FEMA reengage with States and local
communities on the FFRMS proposed rule and policy. The commenter noted
the floodplain program is administered at the local level and stated
FEMA failed to conduct sufficient outreach or even hold a single public
meeting to help explain the elaborate and expansive changes. The
commenter stated local administrators and community officials deserved
sufficient time to understand the proposed rule and policy changes and
develop informed comments on how it might affect their programs. The
commenter asked that FEMA perform additional outreach to educate local
floodplain administrators, elected officials, and emergency managers on
the proposed rule and policy.
Some commenters requested FEMA provide additional outreach,
training, technical assistance, and community engagement as part of the
FFRMS implementation. One commenter requested training, outreach, and
coordination at the program, departmental, interagency, and
intergovernmental levels for successful implementation of FFRMS. The
commenter requested FEMA provide technical resources including
comprehensive guidance, maps and resources, and technical assistance.
Another commenter requested FEMA provide guidance and training
materials to stakeholders to ensure a comprehensive understanding and
consistent application of the FFRMS. One commenter requested FEMA
develop accessible guidance and tools to facilitate and improve the
benefit-cost analysis for both nature-based solutions and hybrid green-
gray infrastructure approaches. Another commenter recommended FEMA
conduct virtual and in-person workshops and listening sessions to
explain the FFRMS, changes to 44 CFR part 9 (including the 8-step
process), including applications for FEMA grants under HMGP, FMA and
BRIC. Another commenter stated appreciation for FEMA's plans to assist
applicants with FFRMS and the 8-step process and encouraged the agency
to seek sufficient funding to adequately staff such an effort.
FEMA Response: As one commenter noted, FEMA completed significant
outreach and stakeholder engagement during the course of the FFRMS
development and rulemaking processes. FEMA believes those outreach
efforts were sufficient and additional public meetings for this
rulemaking were not required.\233\ FEMA disagrees with one commenter
requesting the agency complete additional outreach to allow for public
comment. Local administrators and community officials had an
opportunity to submit comments on the proposed rule and policy changes,
and FEMA notes some communities did submit comments on this rulemaking.
FEMA will perform additional outreach to SLTT partners, stakeholders,
and the public, including distribution of additional resources to
assist in FFRMS implementation.
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\233\ Established by the 2013 Climate Action Plan, the Climate
Task Force met with stakeholders from State, local, Tribal, and
territorial governments; private businesses; trade associations;
academic organizations; civil society; and other stakeholders to
develop and provide recommendations in November 2014. President's
State, Local, and Tribal Leaders Task Force on Climate Preparedness
and Resilience, Recommendations to the President, (2014), available
at https://obamawhitehouse.archives.gov/sites/default/files/docs/task_force_report_0.pdf at 7 (last accessed Jan. 24, 2024). FEMA,
acting on behalf of the MitFLG and consistent with Executive Order
13690, published a draft of the Revised Guidelines for notice and
comment on February 5, 2015 at 80 FR 6530. During the public comment
period, over 25 meetings were held across the country with State,
local, and Tribal officials and interested stakeholders to discuss
the Revised Guidelines. There were also 9 public listening sessions
across the country that were attended by over 700 participants from
State, local, and Tribal governments, and other stakeholder
organizations to discuss the Revised Guidelines. The final Revised
Guidelines were published on October 22, 2015 at 80 FR 64008. FEMA
published a notice of proposed rulemaking to implement FFRMS
initially in 2016 at 81 FR 57402 (Aug. 22, 2016) along with a notice
of availability and request for comment on a supplementary policy at
81 FR 56558 (Aug. 22, 2016) and a notice of availability regarding a
draft report at 81 FR 64403 (Sept. 20, 2016).
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FEMA agrees that successful implementation will require training,
outreach and interagency coordination and appreciates the commenters'
suggestions on ways to achieve effective outreach. FEMA participated in
the IWG on Flood Resilience to support the implementation of the FFRMS.
FEMA continues to collaborate with the IWG and other interagency groups
consistent with Executive Order 11988, as amended, and the Revised
Guidelines. FEMA will distribute additional resources to the public and
SLTT partners identifying what the FFRMS is, and how the agency will
implement the Executive Orders, and these resources will help
applicants as they apply for FEMA-funded assistance programs. FEMA will
also provide technical assistance through the agency's regional offices
in support of FFRMS implementation. FEMA will also further consider the
outreach options shared by the commenters as the agency begins FFRMS
implementation after this rulemaking.
4. Equity and Environmental Justice
Comments: Commenters provided feedback on incorporating equity and
environmental justice into the 8-step process. While commenters
indicated support for FEMA's rule and FFRMS policy as a means of
bolstering the agency's commitment to addressing equity and
environmental justice when addressing flood risks, others requested
additional clarification or provided recommendations on ways FEMA could
further advance equity and environmental justice in the rule and FFRMS
policy. Commenters requested the agency incorporate social, economic,
and environmental concerns into the 8-step process. These commenters
also requested more outreach to underserved communities and ways to
address the increased costs of actions subject to the FFRMS.
One commenter stated that flood impacts are not experienced equally
across communities in the United States, referencing policies such as
redlining and lower tax rates as forcing underserved populations into
flood-prone areas and resulting in those
[[Page 56988]]
communities facing disproportionately high risk from flooding. The
commenter stated these communities have also been disproportionately
impacted by the environmental degradation resulting from floodplain
development, underscoring the relationship between floodplain
management and environmental justice. The commenter stated underserved
communities have faced inequities in the distribution of flood risk
reduction resources, partially because of reduced capacity and
opportunity to respond to flood hazards compared to more well-resourced
communities. The commenter stated that, based on these inequities, any
proposal to update floodplain management standards would have an
outsized effect on underserved communities. The commenter requested
that FEMA consider the implicit connections between the FFRMS and
environmental justice and the potential impact on Federally-protected
treaty rights to floodplain resources. The commenter also requested
FEMA consider the long-term benefits--including economic benefits--that
can result from stricter floodplain management standards and upfront
investments to ensure more resilient development projects.
This commenter further recommended a regular environmental justice
and Tribal treaty rights assessment to review unforeseen burdens or
missed opportunities with environmental justice communities and Tribal
treaty rights-holders, consistent with Justice40 after the rule takes
effect. The commenter requested FEMA include a structure to ensure that
Tribal, low-income, and frontline communities and communities of color
would be elevated in refining how the FFRMS is used and updated over
time. The commenter requested FEMA explore technical assistance
opportunities to ensure support for low-capacity communities. The
commenter requested FEMA incorporate FFRMS into the agency's Justice40
efforts and prioritize funding to Tribes and underserved communities to
increase flood resilience, stating this prioritization was particularly
important in places where a more protective standard for the floodplain
could raise upfront project costs and impact affordability for low-
income communities, taxpayers, and rate payers. Another commenter
raised similar concerns regarding equity, environmental justice, and
community engagement. The commenter stated that FEMA has the
opportunity to explicitly advance and promote environmental justice
within the rule and, consistent with Executive Order 14096, FEMA should
provide opportunities for the meaningful engagement of persons and
communities with environmental justice concerns who are potentially
affected by Federal activities. Quoting Executive Order 14096, the
commenter requested FEMA provide timely opportunities for members of
the public to share information or concerns and participate in the
decision-making processes; fully consider public input provided as part
of the decision making processes; seek out and encourage the
involvement of persons and communities potentially affected by Federal
activities; and provide technical assistance, tools, and resources to
assist in facilitating meaningful and informed public participation.
The commenter recognized FEMA's actions to incorporate meaningful
engagement with environmental justice communities, but requested FEMA
recommit to that engagement through this rulemaking.
Two commenters recommended FEMA revise the rule to ensure it
explicitly addresses environmental justice concerns. One of these
commenters stated that despite FEMA's statement that the proposed rule
would not have adverse impacts on communities with environmental
justice concerns, experience along with scientific and policy analysis
found that Federal policies such as the FFRMS would have distributional
impacts across sectors and communities, especially overburdened and
underserved communities. The commenter cited to specific studies
reflecting the level of flood risk increase for some disadvantaged
communities and stated FEMA should ensure the final rule advanced
environmental justice by requiring the consideration of
disproportionate and adverse effects on communities with environmental
justice concerns. Another commenter stated similar concerns with FEMA's
statement in the proposed rule that the agency did not expect the rule
to have a disproportionate and adverse human health or environmental
effect on communities with environmental justice concerns and requested
FEMA explicitly advance and promote environmental justice
considerations in the final rule. The commenter stated that equity and
environmental justice concerns must be acknowledged and weighed in the
analysis of all FEMA-funded projects. This commenter requested
guidance, tools, and resources to ensure best practices are used in
project planning and design. The commenter stated flood-prone land
tended to be cheaper, disregarding hidden long-term costs and
recommended FEMA strengthen transparency in the public's awareness of
flooding risks in any community development and prioritize long-term
safety over initial cost savings. Another commenter shared the concern
raised by these commenters that FEMA did not consider environmental
justice issues when drafting the rule and recommended FEMA actively
promote environmental justice in the final rule. This commenter also
referenced Executive Order 14096 and stated that climate-driven flood
hazards were expected to disproportionately impact Black communities in
the South. The commenter further stated some estimates indicated the
Southeast stood to suffer the most economic damage due to climate
change with incalculable social costs. The commenter provided
additional statistics regarding flood risks and referenced a specific
seawall project as an example of common failures to adequately consider
environmental justice concerns in the context of floodplain adaptation.
FEMA Response: FEMA appreciates the commenters' concerns on the
increased costs of projects, equity, environmental justice, and
community engagement. FEMA is committed to meaningful engagement on
environmental justice and understands that flood impacts are not always
experienced equally across communities in the United States. The agency
has always incorporated natural environment, social concerns, and
economic aspects into the 8-step process as part of the practicability
analysis, and this rulemaking will not change that practice. FEMA's
revisions to part 9 reflect consideration of the type and criticality
of the action involved, the availability and actionability of the data,
and equity concerns in the implementation of Executive Order 11988, as
amended. FEMA also has an agency-wide initiative focused on reducing
barriers and increasing opportunities so all people, including those
from vulnerable and underserved communities, can get help when they
need it.\234\
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\234\ See https://www.fema.gov/emergency-managers/national-preparedness/equity (last accessed Jan. 24, 2024).
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FEMA reviews all proposed FEMA-funded actions for potential
disproportionate and adverse human health and environmental effects on
communities with environmental justice concerns using a standardized
environmental justice compliance review process. This final rule will
not
[[Page 56989]]
change that process. As an environmental justice review takes place on
all FEMA proposed actions, FEMA does not believe an additional
assessment is needed in conjunction solely with this final rule.
Further, FEMA and the applicant may consider potential impacts on
Tribal treaty rights, where applicable, when evaluating the
practicability of alternatives in the 8-step process. As this would
occur for all actions that potentially impact Tribal treaty rights,
FEMA does not believe an additional assessment is needed in conjunction
with this final rule.
Regarding the commenter's request that FEMA provide a way for these
communities to engage on updates to the FFRMS, FEMA notes the agency is
not solely responsible for revisions to the FFRMS or the Revised
Guidelines. The MitFLG in consultation with the FIFM-TF will reassess
the FFRMS annually, after seeking stakeholder input, and provide
recommendations to the WRC to update the FFRMS, if warranted based on
accurate and actionable science that takes into account changes to
climate and other changes in flood risk. The WRC shall issue an update
to the FFRMS at least every 5 years.\235\ Consistent with the
requirements of Executive Order 11988, as amended, the interagency will
engage with SLTTs and the public, including Tribal communities for any
updates to the FFRMS.
---------------------------------------------------------------------------
\235\ Revised Guidelines, pg. 20.
---------------------------------------------------------------------------
As noted by the commenter, there are connections between the FFRMS
and environmental justice. The FFRMS seeks to continue to improve the
resilience of communities, including communities with environmental
justice concerns, and help preserve the natural values of floodplains.
Likewise, under the 8-step process, FEMA and the applicant may consider
potential impacts on Tribal treaty rights, where applicable, when
evaluating the practicability of alternatives. FEMA appreciates the
commenter's request to consider economic benefits from stricter
floodplain management standards and upfront investments, and the agency
did consider the costs and benefits associated with this rule,
including the overall increased costs of FEMA projects,\236\ in the
regulatory impact analysis provided on the public docket for this
rulemaking.\237\ FEMA believes that the benefits of preventing property
damage and potentially saving lives justify the costs of the rule.
These benefits are a result of the improved protection of structures
and facilities due to increased elevation and floodproofing standards
in FEMA's implementation of the FFRMS. This rule will help to ensure
that Federal investments are better protected from flood damage, and
that the natural values of floodplains are preserved.
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\236\ For example, FEMA found that for a project with a 75%
FEMA/25% applicant cost share, the cost to an applicant to elevate a
structure above the BFE to meet FEMA's FFRMS requirements using the
FVA+2 (1.91 percent of construction cost) represented less than 0.5%
of the total project cost, or an average of an additional $4,775 in
applicant cost share on an original total project cost of
$1,000,000. See A Benefit Analysis of Increased Freeboard for Public
and Nonresidential Buildings in Riverine and Coastal Floodplains,
posted to the public docket of this rulemaking at https://www.regulations.gov/document/FEMA-2023-0026-0003.
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Regarding the commenters' concerns that FEMA provide opportunities
for engagement and participation in the decision-making process, FEMA
completed significant outreach in 2015 as part of the development and
publication of the Revised Guidelines. That outreach included over 25
meetings across the country with State, local, and Tribal officials and
interested stakeholders to discuss the Revised Guidelines and 9 public
listening sessions that were attended by over 700 participants from
State, local, and Tribal governments, and other stakeholder
organizations to discuss the Revised Guidelines.\238\ FEMA believes
those outreach efforts were sufficient.\239\ FEMA notes that, in
addition to engagement on the FFRMS and rulemaking, FEMA's 8-step
process incorporates community engagement into the process. FEMA will
continue to notify the public at the earliest possible time of the
intent to carry out an action in a floodplain or wetland and involve
the affected and interested public in the decision-making process, as
detailed further in Sec. 9.8, as well as provide the public notice
with a statement documenting the outcome of the 8-step process as
detailed in Sec. 9.12. Beyond all of the foregoing, FEMA also provides
public notice for proposed actions under NEPA and other environmental
planning and historic preservation laws and executive orders. This
rulemaking will not change those requirements.
---------------------------------------------------------------------------
\238\ Public meetings were held at a range of locations across
the country at varied times to maximize participation. Meetings were
held in Fairfax, VA; Seattle, WA; Dallas, TX; New York, NY; Ames,
IA; Biloxi, MS; Sacramento, CA; and Hampton Roads, VA. See generally
Guidelines for Implementing Executive Order 11988, Floodplain
Management non-rulemaking docket available at https://www.regulations.gov/docket/FEMA-2015-0006/document for the public
meeting notices and transcripts from the meetings.
\239\ Established by the 2013 Climate Action Plan, the Climate
Task Force met with stakeholders from State, local, Tribal, and
territorial governments; private businesses; trade associations;
academic organizations; civil society; and other stakeholders to
develop and provide recommendations in November 2014. President's
State, Local, and Tribal Leaders Task Force on Climate Preparedness
and Resilience, Recommendations to the President, (2014), available
at https://obamawhitehouse.archives.gov/sites/default/files/docs/task_force_report_0.pdf at 7 (last accessed Jan. 24, 2024). FEMA,
acting on behalf of the MitFLG and consistent with Executive Order
13690, published a draft of the Revised Guidelines for notice and
comment on February 5, 2015 at 80 FR 6530. The final Revised
Guidelines were published on October 22, 2015 at 80 FR 64008. FEMA
published a notice of proposed rulemaking to implement FFRMS
initially in 2016 at 81 FR 57402 (Aug. 22, 2016) along with a notice
of availability and request for comment on a supplementary policy at
81 FR 56558 (Aug. 22, 2016) and a notice of availability regarding a
draft report at 81 FR 64403 (Sept. 20, 2016).
---------------------------------------------------------------------------
Additionally, to further engage with communities in the FFRMS
implementation, FEMA will distribute resources identifying what the
FFRMS is, and how the agency will implement the Executive Orders. These
resources will help applicants as they apply for FEMA-funded assistance
programs. FEMA's regional offices will also provide technical
assistance in support of FFRMS implementation. FEMA anticipates these
resources could be used in project planning and design, as requested by
one of the commenters. Furthermore, FEMA has staff dedicated to
assisting with implementation of environmental justice planning and
compliance, and will develop further resources to assist in
implementing environmental justice requirements.
FEMA agrees with the commenters that flood risk is not uniformly
distributed. However, the agency does not believe changes to the
regulatory text or policy are required to help ensure consideration of
disproportionate and adverse effects on communities with environmental
justice concerns. FEMA currently reviews all proposed actions in the 8-
step process to identify and address any disproportionate and adverse
human health or environmental effects on communities with environmental
justice concerns to advance environmental justice. This process will
not change as a result of this rulemaking.
Additionally, through the 8-step process, FEMA identifies impacts
such as the flooding risks associated with the occupancy or
modification of floodplains and wetlands and the potential direct and
indirect support of floodplain and wetland development that could
result from the proposed action. FEMA understands the commenter's
concerns regarding potential hidden long-term costs of flood-prone land
purchases. FEMA believes the agency's flood risk mapping efforts
increase transparency in the public's awareness of flooding risks, and
the agency's floodplain management
[[Page 56990]]
programs further advance understanding of the impacts of development in
floodplains.
FEMA appreciates the final commenter's information and example of
challenges of failing to consider environmental justice concerns in
Federal projects. FEMA acknowledges that the project described by the
commenter was not a FEMA-funded project, but values the input provided
by the commenter on the challenges faced when failing to consider
environmental justice. FEMA is committed to meaningful engagement on
environmental justice and seeking public input on proposed actions. As
explained above, FEMA seeks input from the public as part of its
reviews under Executive Orders 11988, 11990, 12898 and 14096, as well
as NEPA, among other environmental planning and historic preservation
laws and executive orders and has dedicated staff and a commitment to
additional resources on environmental justice specifically.
Comment: Three commenters requested edits to the regulatory text to
advance environmental justice with two suggesting specific edits. One
commenter requested FEMA revise Sec. 9.2(d) to identify environmental
justice and avoid disproportionate effects to communities with
environmental justice concerns as policy priorities. Another commenter
requested FEMA revise Sec. 9.6(b)(2) by adding language consistent
with HUD's proposed rule to state that ``when the proposed activity is
located in or affects a community with environmental justice concerns
under Executive Order 12898, public comment and decision making under
this part shall be coordinated with consultation and decision making
under HUD policies implementing 24 CFR 58.5(j) or 50.4(l).'' The
commenter also requested FEMA revise the principles in the proposed
FFRMS policy to include a new principle on environmental justice to
state that FEMA would work to reduce adverse impacts on communities
with environmental justice concerns and engage communities in decision-
making processes if the Federal action is a concern to these
communities. This commenter requested FEMA revise Sec. 9.11 to ensure
FEMA would promote mitigation and minimization measures to address any
disproportionate and adverse flood risks affecting these communities.
Another commenter requested FEMA revise Sec. 9.10 to require
consideration of disproportionate and adverse effects on communities
with environmental justice concerns, whether direct, indirect, or
cumulative. That commenter requested FEMA encourage proactive community
engagement and community-led planning within the final rule and
recommended FEMA reassess part 9 and incorporate language to codify the
agency's commitments to environmental justice and community engagement.
FEMA Response: FEMA does not believe the proposed edits to the
regulatory text or FFRMS policy are necessary to address the
commenters' environmental justice concerns. As explained above, FEMA
has always incorporated natural environment, social concerns, and
economic aspects into the 8-step process as part of the practicability
analysis. FEMA's revisions to part 9 in this rulemaking reflect
consideration of the type and criticality of the action involved, the
availability and actionability of the data, and equity concerns in the
implementation of Executive Order 11988, as amended. FEMA also has an
agency-wide initiative focused on reducing barriers and increasing
opportunities so all people, including those from vulnerable and
underserved communities, can get help when they need it.\240\ Further,
as explained above, FEMA reviews all proposed FEMA-funded actions for
potential disproportionate and adverse human health and environmental
effects on communities with environmental justice concerns using a
standardized environmental justice compliance review process. This
final rule will not change that process.
---------------------------------------------------------------------------
\240\ See https://www.fema.gov/emergency-managers/national-preparedness/equity (last accessed Jan. 24, 2024).
---------------------------------------------------------------------------
FEMA does not believe the specific changes requested to revise
Sec. 9.2(d) to identify environmental justice and avoid
disproportionate effects to communities with environmental justice
concerns as policy priorities are necessary, given the agency's
consideration of natural environment, social concerns, and economic
aspects in the 8-step process and the agency's review of all proposed
FEMA-funded actions under Executive Order 12898 and 14096. FEMA further
does not believe specific regulatory text is required to implement
Executive Orders 12898 and 14096, as the agency already implements
these requirements through other FEMA policies and processes.\241\ As
with the changes requested to Sec. 9.2(d), FEMA does not believe that
adding an additional principle to the FFRMS policy is necessary, given
the agency's consideration of social concerns, which may include
equity, and other factors under Sec. 9.9(c), and environmental justice
reviews conducted under Executive Orders 12898 and 14096 for proposed
actions.
---------------------------------------------------------------------------
\241\ See ``Instructions on Implementation of the Environmental
Planning and Historic Preservation Responsibilities and Program
Requirements,'' pgs. 4 and 15, available at https://www.fema.gov/sites/default/files/2020-07/fema_ehp_instructions_implementation_2018.pdf (last accessed Apr.
22, 2024).
---------------------------------------------------------------------------
In Sec. 9.11, FEMA details the requirements when actions must be
located within or will affect a floodplain or wetland. The provisions
of that section, as proposed, can be used to address flood risks
affecting communities, including any disproportionate and adverse flood
risks. FEMA is also required to address any disproportionate and
adverse human health or environmental effects of actions on communities
with environmental justice concerns, to the greatest extent practicable
and permitted by law.
FEMA believes that the wording in Sec. 9.10 is sufficient without
further edits to enable the Agency to identify potential direct and
indirect adverse impacts associated with the occupancy and modification
of floodplains and wetlands and the potential direct and indirect
support of floodplain and wetland development that could result from
the proposed action. In Step 4, FEMA considers a wide variety of
factors in identifying potential impacts of an action that may be of
relevance to communities with environmental justice concerns, including
pollution, public health, safety, and welfare, and numerous others.
FEMA is not updating significant portions of the public notice
process in this rulemaking with respect to public comment and community
engagement, as FEMA does not believe the current notice process is
inadequate. However, FEMA did update Sec. 9.8(c)(4)(i) to incorporate
notice through the internet or another comparable method. When notice
is provided electronically, FEMA will also provide links to electronic
versions of relevant maps. FEMA will continue to notify the public at
the earliest possible time of the intent to carry out an action in a
floodplain or wetland and involve the affected and interested public in
the decision-making process, as detailed further in Sec. 9.8.
K. Emphasis on Nature-Based Approaches
1. General Support
Comments: Several commenters expressed specific support for FEMA's
revisions to part 9 and the FFRMS policy to further incorporate nature-
based solutions into the 8-step process.
[[Page 56991]]
Commenters stated that the emphasis on natural features and nature-
based approaches was important as these were innovative, sustainable
solutions and aligned with other Federal, State, and local goals.
Commenters requested FEMA implement these changes as soon as possible.
Some commenters also requested that FEMA develop additional resources
for nature-based solutions. One commenter recommended that FEMA require
consideration of nature and nature-based approaches early in the 8-step
process. The commenter stated that doing so was critical to protecting
floodplain values, minimizing impacts to natural areas, ESA-listed
species, and Tribal treaty rights, and effectively building resilience
to flood impacts. The commenter requested that FEMA consider nature-
based solutions in step 2 during public notice and that FEMA continue
to provide and publish the best examples of where nature-based
approaches were applied and led to flood risk reduction benefits. A
commenter, while supporting FEMA's requirement to use natural features
and nature-based approaches where possible, recommended that FEMA
clearly assert the criteria that would satisfy the use of natural
features and nature-based approaches either in the final rule or
additional guidance.
FEMA Response: FEMA appreciates the commenters' discussion of the
importance of natural features and nature-based approaches and agrees
that it is important to implement these changes with this final rule in
a swift manner. FEMA's policy will be reassessed on a four-year cycle
to ensure the approach continues to meet the goals of Executive Order
11988, as amended.
Regarding the commenter's request for consideration of nature-based
solutions early in the 8-step process, FEMA's process at step 2 is to
solicit any pertinent input from the public after the location
determination for the proposed action and before the agency has made
any decisions regarding practicable alternatives. Step 2 allows the
public to provide information on potential alternatives, including
nature-based solutions. FEMA notes the proposed action in step 1 may
also incorporate nature-based approaches, which the public can comment
on in step 2. FEMA does not believe the language of the regulatory text
needs revision to address the concerns raised by the commenter as the
agency's practice already incorporates the process outlined.
FEMA's FFRMS policy provides more information on the criteria to
satisfy the use of natural features and nature-based approaches. FEMA
plans to provide resources that will incorporate additional examples of
nature-based approaches and will coordinate with other Federal agencies
regarding the use of nature-based solutions as part of the FFRMS
implementation and beyond. FEMA will distribute these and other
resources for the public and SLTT partners to help applicants for FEMA-
funded assistance programs. FEMA's regional offices will also provide
technical assistance in support of the final rule's implementation.
2. Implementation of Nature-Based Solutions
Comment: A commenter requested FEMA further amend part 9 to clarify
that that nature-based solutions must be considered in all cases, and
documentation should be provided where such approaches were ultimately
found to be not practicable.
FEMA Response: FEMA believes that the final rule addresses the
commenter's concerns as nature-based solutions must be considered in
all instances where alternatives can be considered in the 8-step
process. FEMA's procedures for review of its actions under part 9
include documenting the 8-step process and will incorporate
documentation of nature-based solution consideration as part of that
process.
Comments: Two commenters requested FEMA remove ``where
appropriate'' under Step 5, proposed Sec. 9.6(b)(5), which stated that
FEMA would integrate natural systems, ecosystem services, and nature-
based approaches ``where appropriate.'' In contrast, two commenters
requested FEMA recognize situations where nature-based solutions would
not be appropriate. A commenter wrote because Executive Order 11988, as
amended, recognized nature-based approaches were not always possible or
practical, that FEMA's rule must recognize situations where nature-
based approaches were infeasible. The commenter stated that while
nature-based approaches might be preferred, they might not always
provide the optimal or even the most cost-effective solutions and
recommended that FEMA incorporate language into part 9 requiring the
agency to recognize the role of State and local agencies in ultimately
approving nature-based approaches for addressing impacts to wetlands
and floodplains when determining the practicability of the alternatives
set out. Another commenter stated while nature-based and hybrid
approaches could be prioritized, they may not be feasible to protect
all infrastructure.
FEMA Response: The language ``where appropriate'' is important, as
not all actions can integrate natural systems, ecosystem services, and
nature-based approaches. FEMA funds a range of actions, and not all of
those actions can utilize nature-based approaches. For example, FEMA
funds structure repairs, and those types of repairs generally could not
utilize a nature-based approach as an alternative.
FEMA's regulation and policy require the incorporation of nature-
based approaches into the development of alternative actions to the
extent possible, consistent with Executive Order 11988, as amended. In
addition, FEMA's FFRMS policy clarifies that nature-based approaches
can also be incorporated as minimization measures where they are not
possible as a practicable alternative. However, nature-based approaches
will only be implemented where appropriate. Nature-based approaches are
subject to the practicability analysis which relies on the factors
identified in Sec. 9.9(c). Those factors include legal constraints
such as where state or local law is conflicting. For an alternative to
be considered practicable, it must meet the need of the action FEMA is
taking. Additionally, Sec. 9.11(d)(6) requires FEMA to utilize any
higher Federal, State, or local standards in the 8-step process.
Nature-based solutions apply to any FEMA-funded action that
requires an analysis of alternatives, not just those that are subject
to the FFRMS (new construction, substantial damage, or substantial
improvement). The FFRMS applies to grants for certain projects under
FEMA programs such as IA, PA, and HMA programs, and grants processed by
FEMA's GPD. All Federal agencies will utilize the Revised Guidelines
for their own FFRMS implementation.
Additionally, FEMA disagrees that additional language is required
in part 9 to recognize the role of State and local agencies in the
process for determining when nature-based solutions may be practicable
for a particular action. FEMA conducts the 8-step process
collaboratively with participation from SLTT partners and grant program
staff, with responsibilities and requirements for applicant
participation in the 8-step process outlined in the long-standing
requirements of 44 CFR 9.17. FEMA will work with SLTTs to determine
what practicable alternatives may exist, including nature-based
solutions.
Comment: A commenter recommended that FEMA apply nature-based
approaches beyond the practicable alternatives analysis. The
[[Page 56992]]
commenter stated that the underlying assumption of the proposed rule
was that nature-based approaches offered an alternative to reduce the
effects of a traditional development project. While supporting the
requirement to avoid floodplains and wetlands impacts, the commenter
requested the rule also acknowledge that floodplains and wetlands
restoration is an important flood risk reduction strategy in its own
right. The commenter stated that Federal, State, and non-profit
entities are focused on restoration efforts and that their investments
are needed to accelerate the use of nature-based flood risk reduction
strategies such as wetland and floodplain restoration. The commenter
acknowledged that some of their comments may be outside the scope of
the rulemaking, but stated that they submitted such comments because
floodplain regulations and management are critical to whether we have
more, less, or an indifferent amount of federal investments in nature-
based approaches to floodplain restoration across the nation. The
commenter stated that the nation desperately needs more floodplain
restoration if we're going to move from reacting to disasters to being
proactive and delivering on the multitude of co-benefits that healthy
floodplains provide.
FEMA Response: FEMA appreciates the commenter's concerns but as
explained in the preamble to the NPRM, 44 CFR part 9 only applies to
FEMA actions. The FFRMS applies to grants for projects under FEMA
programs such as IA, PA, and HMA, and grants processed by FEMA's GPD.
All Federal agencies have their own requirements to implement the 8-
step process and will utilize the Revised Guidelines for their own
FFRMS implementation.
FEMA values the commenter's focus on the importance of nature-based
approaches and will integrate these approaches where appropriate in
actions under the 8-step process. FEMA-funded actions largely are
identified by State and local applicants who design projects to meet
their own communities' needs, which may include floodplain and wetland
restoration. However, FEMA's mission extends beyond these actions, and
the agency cannot eliminate the need to consider other types of actions
such as the repair and replacement of public structures and facilities,
such as schools and roadways. When evaluating such actions, FEMA will
consider the practicability of nature-based approaches consistent with
this rule.
Comment: One commenter also stated support for FEMA's use of
nature-based solutions in the rule but stated the lack of examples and
lack of a clear hierarchy when choosing among available solutions could
diminish the impact of the agency's requirement. The commenter
recommended FEMA require that alternatives protect and/or restore
natural features and ecosystem processes to the maximum extent possible
before resorting to other means; that nature-based approaches be
incorporated to the maximum extent possible after maximizing protection
and/or restoration of natural features and ecosystem processes; and
allowing use of grey infrastructure only after nature-based options
were deployed to the maximum extent possible. Another commenter wrote
that where avoidance was not possible, landscape-level resilient design
including green infrastructure and nature-based solutions should be
incorporated meaningfully, even for activities that may not adversely
impact floodplain function, to benefit and improve the resilience of
surrounding communities. A third commenter recommended FEMA encourage
and incentivize higher functioning nature-based approaches on acquired
properties, stating that mitigation project applicants were often
encouraged to simply grade and seed a parcel leaving ongoing
maintenance concerns with only a minimal natural benefit. This
commenter also requested that FEMA require documentation on the nature-
based approaches considered and justification for the inclusion or
exclusion. Finally, another commenter recommended that FEMA incorporate
more information on when and why nature-based solutions would be
appropriate alternatives to consider in Steps 3 and 6 and highlight
best practices, such as wetlands preservation. The commenter added that
part 9 should more specifically and clearly promote these approaches to
ensure that FEMA consistently identified and pursued opportunities to
restore natural and beneficial floodplain functions within or near the
project site as a part of potential risk mitigation strategies. The
commenter recommended FEMA add a subsection to Sec. 9.11 discussing
the benefits of these measures and specifying approaches that could be
incorporated into project plans.
Two commenters recommended FEMA revise Sec. 9.9(b)(2) to
specifically identify wetlands restoration and preservation as a
uniquely valuable complement or alternative to grey infrastructure.
Another commenter requested FEMA incorporate stronger language on when
and how to apply nature-based solutions and to highlight best
practices, such as wetlands preservation.
FEMA Response: FEMA does not believe the final rule requires
revision. FEMA's actions are focused on protection of life, safety, and
improved property and FEMA does not typically fund actions that solely
protect natural features and ecosystems. As such, FEMA is not
necessarily taking actions where alternatives to protect natural
features and ecosystem processes to the maximum extent possible are
appropriate before resorting to other means. FEMA believes the
commenter's concerns regarding wetlands preservation are already
addressed in this final rule. Wetland conservation and restoration
would be included under natural systems, ecosystem processes, and
nature-based approaches provided in Sec. 9.9(b)(2) as amended in this
final rule. Additionally, the existing practicability factors set forth
in Sec. 9.9(c), including the natural environment factor, is
sufficient to address the commenter's concerns.
FEMA prefers not to limit the regulatory text and instead provide
additional information through FFRMS implementation resources to
address the commenter's concerns. As explained above, the FFRMS policy
does provide more information on the criteria to satisfy the use of
natural features and nature-based approaches and FEMA plans to provide
additional resources. These resources will incorporate additional
examples of and information on nature-based approaches, such as the
value of Indigenous knowledge and Traditional Ecological Knowledge
(TEK). Where both a nature-based solution and a grey infrastructure
solution are practicable, FEMA plans to generally prioritize the
nature-based solution over a grey infrastructure solution as the
commenter recommends. In addition, FEMA's FFRMS policy clarifies that
nature-based approaches can also be incorporated as minimization
measures where they are not possible as a practicable alternative.
Further, as explained above, FEMA's procedures for review of its
actions under part 9 include documenting the 8-step process and will
incorporate documentation of nature-based solutions considered as part
of that process. FEMA will distribute additional resources for the
public and SLTTs as detailed above to further assist applicants when
applying for FEMA programs.
Comment: Another commenter asked how FEMA would determine when
nature-based solutions should be used. The commenter stated the FHWA
and many State DOTs were developing or
[[Page 56993]]
had developed their own guidance for these items for riverine and tidal
environments and that those agencies should be allowed to use their
policies to fit specific projects.
FEMA Response: FEMA appreciates the commenter's concerns but as
explained in the preamble to the NPRM, 44 CFR part 9 only applies to
FEMA actions. The FFRMS applies to grants for projects under FEMA
programs such as IA, PA, and HMA, and grants processed by FEMA's GPD.
All Federal agencies have their own requirements to implement the 8-
step process and will utilize the Revised Guidelines for their own
FFRMS implementation.
FEMA's approach for facilities is meant to be flexible. As section
G.2 of FEMA's FFRMS policy states ``[t]he FFRMS is a resilience
standard . . . Resilience measures include using structural or
nonstructural methods to reduce or prevent damage; elevating a
structure; or, where appropriate, designing it to adapt to, withstand
and rapidly recover from a flood event.'' \242\
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\242\ See FFRMS policy, pg. 8.
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Comment: A commenter wrote to commend FEMA for incorporating
reduced discount rates in the cost-benefit analysis of nature-based
solutions. The commenter requested FEMA continue bolstering
accountability in the assessment process by requiring practitioners to
clearly describe the nature-based alternatives that were considered,
and in cases where they are ultimately deemed not practicable, to
provide an explanation and analysis for their reasoning as part of the
final rule.
FEMA Response: FEMA appreciates the commenter's support and will
continue to provide guidance to help communities recognize and capture
the long-term benefits of nature-based solutions and all resilience
actions in evaluating practicable alternatives and analyzing projects
for cost-effectiveness.
FEMA's regulation and policy require the incorporation of nature-
based approaches to the extent possible. In addition, FEMA's FFRMS
policy clarifies that nature-based approaches can also be incorporated
as minimization measures where they are not possible as a practicable
alternative. As explained above, FEMA's procedures for review of its
actions under part 9 include documenting the 8-step process and will
incorporate documentation of nature-based solution consideration as
part of that process.
Comment: A commenter requested FEMA more explicitly emphasize the
protection and restoration of floodplain functions and nature-based
alternatives when taking Federal actions in the floodplain by adopting
rules that define the values of floodplains, the ecosystem processes or
functions of floodplains that generate those values, and the attributes
that are necessary for a floodplain to be ``functional.'' The commenter
stated FEMA's rule failed to adequately describe the bio-geomorphology
of a functional floodplain and the physical attributes of the
floodplain necessary to obtain those values.
FEMA Response: FEMA appreciates the commenter's suggestion to
integrate bio-geomorphology and attributes of functional floodplains
into the regulation but does not believe additional changes are
appropriate to the final rule or FFRMS policy based on the commenter's
concerns. FEMA's definition of the floodplain in this rule is generally
consistent with the definition of floodplain in the NFIP and with FEMA
and other agencies' historic approach to such definitions and is
intentionally broad to help ensure the agency can meet the needs of the
action and protecting floodplains and wetlands consistent with
Executive Order 11988, as amended. For application of the FFRMS, FEMA
defines specific floodplains in part 9 as using one of the approaches
detailed in the FFRMS policy.
Concurrently, FEMA conducts other environmental and historic
preservation reviews to determine whether proposed actions could have
other impacts to or within floodplains and wetlands. FEMA is
incorporating nature-based solutions into resilience efforts where
appropriate and believes the final rule will help accomplish this goal.
FEMA's regulation and policy do require the incorporation of nature-
based approaches to the extent possible. In addition, FEMA's FFRMS
policy clarifies that nature-based approaches can also be incorporated
as minimization measures where they are not possible as a practicable
alternative.
Comment: A commenter stated nature-based design elements and
nature-based solutions allowed a structure to actively provide carbon
sequestration, decrease the magnitude and frequency of maintenance
leading to increased structural lifespan. The commenter recommended
FEMA incorporate this alternative to traditional concrete as a nature-
based solution to serve as a mitigation measure and design alternative.
FEMA Response: FEMA will use a range of nature-based solutions
where possible and on a case-by-case basis depending on the project.
Project location, including whether coastal or not, will be a factor in
determining the types of available nature-based solutions FEMA may
implement.
L. Other 8-Step Process Comments
1. Generally
Comments: One commenter provided recommendations to encourage
resilient design. The commenter supported FEMA's proposed changes to
Sec. Sec. 9.9 and 9.11, which in the commenter's view would increase
climate resilience, but recommended FEMA require that the alternatives
analysis process incorporate the consideration of an array of flood
mitigation practices and feedback from state and local leaders. The
commenter requested changes to Sec. Sec. 9.9 and 9.11 to emphasize the
effectiveness and benefits of landscape-level methods as effective
alternatives to increase flood resilience and as mitigation for
projects with no practical alternatives outside of the floodplain and
incorporate landscape-level design strategies in developing
alternatives. The commenter requested FEMA consider existing State,
local, and non-governmental resilient design guidelines for the
agency's own guidance and requested FEMA work with other Federal
agencies to develop case studies and examples of projects that achieve
appropriate resilience metrics in lieu of or in addition to elevation.
Another commenter requested FEMA look for impacts beyond the project
boundaries and requested FEMA consider off-site impacts and mitigation
measures. The commenter recommended the rule's implementation and
guidance emphasize the effectiveness and benefits of landscape-level
practices that encompass the full property, not just the physical
building site, to mitigate flood impacts for projects with no practical
alternatives outside of the FFRMS floodplain. The commenter requested
FEMA offer guidance to include development practices, such as No
Adverse Impact or low-impact development, and landscape features and
that any guidance should encourage projects to assess opportunities to
restore the natural and beneficial functions of the floodplain and
wetlands within or near the project site as a part of potential risk
mitigation strategies.
FEMA Response: FEMA agrees that the rule will increase climate
resilience. FEMA's current alternatives analysis process incorporates
consideration of a range of flood mitigation practices. FEMA considers
the following alternatives: (a) no action; (b) alternative locations;
and (c) alternative actions, including alternative actions that use
natural features or nature-based
[[Page 56994]]
solutions. Where possible, nature-based solutions, including those at
the landscape-level, shall be used. Where natural features and nature-
based solutions are not practicable as an alternative on their own to
meet the needs of FEMA applicants, natural features and nature-based
solutions may be incorporated into actions as minimization measures.
As explained above, the flood minimization measures found in Sec.
9.11 are reliable methods of providing resilience to structures. FFRMS
flood resilience measures consider both current and future flood risks
to better protect Federal investments. The elevation requirement in
Sec. 9.11(d)(3) applies to structures and also allows floodproofing
for non-residential structures. The FFRMS policy provides further
explanation that structures that must be located within the FFRMS
floodplain must be elevated or floodproofed to the FFRMS flood
elevation. Additionally, the policy clarifies further that facilities
can use elevation or any other appropriate minimization measure to
protect the facility against the FFRMS flood elevation.
FEMA does not believe the final rule requires edits to address the
commenters' concerns. As the commenter notes, FEMA's policy provides
more detail on how the agency will implement nature-based solutions,
and FEMA believes this level of detail is best provided in policy and
additional resources rather than directly in the regulatory text.
As explained above, communities provide input into the floodplain
determination for part 9. Pursuant to 44 CFR 9.11(d)(6), a more
restrictive Federal, State, or local standard will be used. This
includes the use of local CISA data and methods that have been adopted
by a community for use in floodplain management, as long as such data
results in a more restrictive standard. FEMA values additional input
from SLTT partners and the public in the 8-step process. Projects
subject to FFRMS are frequently designed by such partners and will
continue to be designed to meet local needs as appropriate.
FEMA will distribute additional resources for the public and SLTT
partners identifying what the FFRMS is, and how the agency will
implement the Executive Orders. These resources will help applicants as
they apply for FEMA-funded assistance programs. FEMA will also provide
technical assistance through the agency's regional offices in support
of FFRMS implementation.
Comment: A commenter requested FEMA consider the life of the
project when making flood risk protection decisions and emphasize the
life of the project in the 8-step process, not just in the footprint of
the project but its impact on the surrounding area. The commenter also
requested the analysis of practicable alternatives result in an
adequate assessment and documentation of the life cycle impacts of
nature-based approaches and natural features.
FEMA Response: As explained further in the FFRMS Job Aid,\243\
service life is considered in the determination of the FFRMS floodplain
using CISA. Additionally, in the 8-step decision-making process FEMA
considers whether a proposed action would be located within and whether
it would affect a floodplain or wetland; FEMA avoids Federal actions in
floodplain and wetland locations unless they are the only practicable
alternatives and are able to minimize harm to and within floodplains
and wetlands.
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\243\ Available at https://www.regulations.gov/document/FEMA-2023-0026-0004 and https://www.fema.gov/sites/default/files/documents/fema_ffrms-floodplain-determination-job-aid.pdf (last
accessed Jan. 24, 2024).
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Further, the service life of the project is considered as part of
the practicability analysis, including consideration of maintenance
requirements. FEMA's procedures for review of its actions under part 9
include documenting the 8-step process and will incorporate
documentation of nature-based solution consideration as part of that
process.
2. Wetlands Identification and Floodplain and Wetlands Preservation
Comments: Some commenters requested additional clarification or
provided recommendations regarding how FEMA identifies and preserves
wetlands as part of the 8-step process. Four commenters requested FEMA
improve wetlands identification in the 8- step process. One commenter
noted that FEMA reviewers currently consulted additional sources of
information only if other listed sources provide inadequate
information, which could mean a FEMA reviewer would stop the assessment
after consulting the National Wetlands Inventory (``NWI''). The
commenter stated the NWI was only one imperfect source and could not
provide a definitive determination, as the NWI documented only the
presumed presence of wetlands on a site and did not accurately capture
the full delineation of wetlands at ground-scale. Two of the commenters
requested FEMA update the regulatory text by directing reviewers to
conclude the assessment of whether or not an action was in a wetland
after consulting each of the four sources of information. Two other
commenters agreed stating the determination of the presence or absence
of a wetland in the project site should not be based solely on the NWI
because of the NWI's tendency to underestimate actual wetland areas.
Those commenters recommended FEMA encourage consulting various sources
beyond NWI. One commenter noted that involving a trained wetland
delineator to assess wetland indicators (soil, vegetation, hydrology)
and delineate wetland boundaries was crucial to prevent the loss of
critical wetlands, especially considering their role in flood water
storage.
FEMA Response: FEMA did not change the existing regulation or
process for identifying wetlands. FEMA relies on the NWI to identify
wetlands for the purposes of applying the 8-step process under 44 CFR
part 9 but will also accept other determinations as provided by
regulatory agencies or applicants. FEMA does utilize information from
on-site evaluations, including for locations not included in the NWI;
however, requiring an on-site evaluation of the presence of wetlands
for every potential action would severely delay the provision of
disaster assistance to impacted communities.
FEMA is not changing the current process in step 4 in this
rulemaking and the implementation of the FFRMS would only expand the
floodplain of consideration in step 4 of the 8-step process. FEMA did
not eliminate consultation with the edits made to Sec. 9.10. The edits
made to Sec. 9.10 are to the factors used to identify the impacts to
proposed actions. Those edits were made for consistency with other
edits made in the rule. Specifically, FEMA defines ``natural and
beneficial values of floodplains and wetlands'' to mean the features or
resources that provide environmental and societal benefits. FEMA added
additional clarification that water and biological resources are often
referred to as ``natural functions of floodplains and wetlands'' and
also incorporated additional clarifying examples of water resource
values, living resource values, cultural resource values, and
cultivated resource values for more consistency with the Revised
Guidelines and Executive Order 11988, as amended. FEMA also edited
paragraph Sec. 9.10(d)(2) for consistency with edits made in Sec. 9.4
defining the natural and beneficial values of floodplains and wetlands.
Comment: One commenter requested FEMA take action to preserve
wetlands
[[Page 56995]]
in this rulemaking, requesting FEMA prioritize wetlands preservation
and prevent harm to wetlands to the greatest extent of the agency's
authorities. The commenter recommended FEMA prioritize policy solutions
that incentivize and fund the preservation of all remaining wetlands
and look to climate-smart wetland restoration to maximize benefits.
Noting the recent Supreme Court decision in Sackett v. EPA,\244\ the
commenter requested FEMA act through this rulemaking to provide
whatever protection it can for wetlands. The commenter explained the
permitting process under section 404 of the Clean Water Act prior to
the Supreme Court decision for filling wetlands and stated the Sackett
v. EPA decision \245\ limited the scope of section 404.
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\244\ Sackett v. EPA, 598 U.S. 651 (2023).
\245\ Sackett v. EPA, 598 U.S. 651 (2023).
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The commenter requested FEMA incorporate prohibitions on certain
types of activities in wetlands similar to prohibitions on certain
types of activities in floodplains and provided the example of
prohibiting HMA funding for new construction or substantial
improvements in a floodway or new construction in a coastal high hazard
area unless the action constituted a functionally dependent use or
facilitates an open space use. The commenter suggested FEMA add
language to Sec. 9.11(d)(1) to prohibit new construction and
substantial improvement in a wetland, except for a functionally
dependent use; or a structure or facility which facilitates an open
space use and also requested FEMA amend the HMA and PA Policy and
Program Guides to reflect these changes.
Two commenters requested FEMA add language to the regulatory text
regarding the agency's requirement to restore and preserve both
floodplains and wetlands. One commenter wrote this requirement was
implemented in Sec. 9.11(f), where FEMA established that if an action
harmed or degraded a floodplain or wetland, the agency must implement
measures to restore the natural and beneficial values; however, the
commenter stated FEMA did not provide direction on the measures to be
used and the extent to which the natural and beneficial values must be
restored. The commenter recommended FEMA provide the criteria that
would satisfy the restore and preserve requirement in the regulatory
text or in associated guidance. The commenter also recommended FEMA
require federal actions result, as fully as possible, in no net loss of
both acreage and function for floodplains and wetlands. The commenter
recommended FEMA require the type and extent of mitigation that
applicants must undertake to satisfy the ``restore and preserve''
language where floodplains and wetlands were known to be negatively
impacted. Another commenter requested FEMA add ``or restore'' after
``preserve'' in all the appropriate places in the regulatory text.
FEMA Response: FEMA believes the commenters' regarding wetlands
preservation concerns are addressed by the existing regulation. As
stated in Sec. 9.2(d) and Sec. 9.11(e), FEMA's policy is to preserve
and enhance the natural values of floodplains and wetlands when the
agency has the opportunity to do so. FEMA's longstanding requirements
in the final rule at 44 CFR 9.11(e) outline the agency's requirements
to restore and preserve the natural and beneficial values served by
floodplains and wetlands. FEMA does not believe additional changes to
the regulatory text or FFRMS policy are needed to achieve the
commenters' goal of wetlands preservation.
FEMA did not propose to change the way that the 8-step process is
applied to wetlands, and is not doing so in this final rule. FEMA notes
the definition of wetlands in 44 CFR 9.4 has always been much broader
than that under the Clean Water Act (CWA). Thus, under current practice
the 8-step process has been applied to wetlands regardless of their
jurisdictional status under the CWA. FEMA believes this commenter's
concerns are already addressed by the existing regulation.
Additionally, FEMA understand the first commenter's desire to
prohibit certain actions in wetlands but again believes the current 8-
step process adequately addresses the commenter's concerns. In the 8-
step decision-making process, wetland sites are avoided where possible.
FEMA takes no action in a wetland unless the importance of the wetland
site clearly outweighs the requirements to \246\:
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\246\ See 44 CFR 9.9(e)(3).
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(i) Avoid the destruction or modification of the wetlands;
(ii) Avoid direct or indirect support of new construction in
wetlands;
(iii) Minimize the destruction, loss or degradation of wetlands;
and
(iv) Preserve and enhance the natural and beneficial values of
wetlands.
FEMA notes the 8-step process governs FEMA actions and the Sackett
case does not apply in this context. While FEMA does consider new
construction in wetlands, to include the placement of fill, and will
also consider alternatives, the 8-step process is not an authorization
or permitting process. Additionally, FEMA notes the process is only
applicable to actions funded or performed by FEMA and not more broadly
applicable to actions performed by SLTTs or individuals using non-
Federal funding.
The revisions to part 9 in this final rule do not change FEMA's
long-standing requirement as part of FEMA's implementation of Executive
Order 11988, as amended, and Executive Order 11990 to only perform or
fund actions within or affecting wetlands if those actions are the only
practicable alternative. FEMA considers alternative locations,
alternative actions, nature-based solutions, and the no action
alternative under the practicability analysis and will only perform or
fund the action when there are no practicable alternatives. FEMA will
minimize any adverse impacts when doing so. FEMA believes the
commenter's concerns requesting revisions to Sec. 9.11(d)(1) to add
prohibitions on specific actions in wetlands are unwarranted given the
agency's long-standing process that is not changing as a result of the
changes made in this final rule or FFRMS policy.
FEMA's mission is to help people before, during and after
disasters. While this focus on saving life and property allows for the
restoration and preservation of the natural and beneficial values
served by floodplains and wetlands, that is not the primary mission of
the agency. Accordingly, the majority of FEMA's actions within
floodplain or wetlands for repairs, replacement, or mitigation of risk
to existing structures and facilities. Requiring no net loss in area or
function of floodplains or wetlands would limit the agency's ability to
assist disaster-impacted communities, as well as reduce risk within
those communities. Additionally, requiring mitigation from disaster-
impacted communities may prolong or inhibit their recovery process.
FEMA instead relies on the alternatives analysis required by 44 CFR
part 9 and takes no action within floodplains or wetlands unless there
is no practicable alternative.
FEMA recognizes the concerns of commenter seeking edits to the
regulation and guidance to provide criteria to satisfy the restore and
preserve requirement, but again disagrees that such edits are necessary
in regulatory text or the FFRMS policy to achieve the goals of
floodplain and wetlands restoration and preservation. FEMA notes that
in this rulemaking the agency did not make changes to the restore and
preserve requirements in former Sec. 9.11(e) other than updating the
[[Page 56996]]
numbering (this rule moves former Sec. 9.11(f) to Sec. 9.11(e)). FEMA
will provide additional information and implementation resources to
SLTT partners, stakeholders, and the public as part of the FFRMS
implementation and will consider the commenter's suggestions regarding
additional information on the criteria to satisfy the requirements of
new Sec. 9.11(e) when finalizing those resources. FEMA will also
consider issuing further guidance through the agency's grant programs
on this point.
Regarding another commenter's request to add ``or restore'' after
``preserve'' throughout the regulatory text, FEMA notes that the
regulatory text is consistent with the long-standing policy outlined in
44 CFR 9.2. Specifically, it is the agency's policy to ``restore and
preserve the natural and beneficial values served by floodplains'' and
``preserve and enhance the natural values of wetlands.'' Where
floodplains are addressed in the regulatory text, ``restore and
preserve'' is used, whereas ``preserve'' is used for wetlands, except
for Sec. 9.11(e)(3), which combines the two priorities more broadly in
relation to natural and beneficial values of floodplains and wetlands.
This language is consistent with Executive Order 11988, as amended,
which directs agencies to ``restore and preserve the natural and
beneficial values served by floodplains,'' and Executive Order 11990,
which directs agencies to ``preserve and enhance the natural and
beneficial values of wetlands.'' FEMA notes that the language in
Executive Order 11990 omits ``restore'' in connection to wetlands.
3. Public Notice
Comments: Some commenters requested additional edits to the public
notice requirements of the 8-step process. One commenter requested more
specific guidance about the types and amount of information the notice
would provide and the extent to which impacts will be identified and
explained to the public and recommended FEMA revise the regulation to
require FEMA to make site maps electronically available with the rest
of its public notice. Two commenters requested the rule encourage
community engagement and community-led planning by requiring early
engagement with affected communities to understand the parameters of
risks and vulnerabilities with engagement extending into the project
design and implementation. The commenter requested public engagement go
beyond the existing notice requirements to mandate proactive and
meaningful outreach to affected communities, allowing communities to
provide input that engineers and developers may not have and improving
the overall flood risk knowledge of communities. A third commenter
recommended FEMA incorporate language to Sec. 9.6 and Sec. 9.8 to
codify an emphasis on environmental justice by providing notice to
individuals with limited English proficiency and individuals with
disabilities, as well as communities or groups of people who are
potentially affected and who are not regular participants in Federal
decision-making. Two other commenters agreed with the recommendation
for access to individuals with limited English proficiency.
FEMA Response: FEMA is not updating significant portions of the
public notice process in this rulemaking, as FEMA does not believe the
current notice process is inadequate. However, FEMA did update Sec.
9.8(c)(4)(i) to incorporate notice through the internet or another
comparable method. During the public notice process, FEMA will also
provide links to electronic versions of relevant maps.
FEMA does accept public comments on proposed actions during both
the early and final public notice periods, addressed in Sec. Sec. 9.8
and 9.12. Early public notice allows the public to provide initial
input on alternatives to be considered and potential issues with a
proposed action, which may include specific measures to minimize flood
risk. The final public notice allows for the public to review the
decision-making process conducted by the agency and provide any input
before the action is taken. FEMA notes community planning, such as
hazard mitigation planning, can inform the 8-step process.
FEMA notes this final rule does not apply to a local community's
permitting processes under the NFIP's floodplain management
regulations. Those regulations are found at 44 CFR part 59 et seq. FEMA
defines ``action subject to the FFRMS'' as ``any action where FEMA
funds are used for new construction, substantial improvement, or to
address substantial damage to a structure or facility.'' The FFRMS
applies to grants for projects funding the new construction,
substantial improvement, or repair of substantial damage under FEMA
programs such as IA, PA, and HMA programs, and grants processed by
FEMA's GPD.
FEMA routinely translates agency materials into languages other
than English as appropriate \247\ and consistent with FEMA's Language
Access Policy.\248\ Specifically incorporating this policy into the
rulemaking is not necessary, as FEMA's process is set forth in the
Language Access Policy.\249\ That policy governs how the agency would
handle written translations, as appropriate and consistent with
Executive Order 13166, Improving Access to Services to Persons with
Limited English Proficiency, the DHS Language Access Plan, and Section
308 of the Stafford Act, 42 U.S.C. 5151, as applicable. In accordance
with those existing requirements, FEMA ensures appropriate translations
of public notices for the 8-step process.\250\ FEMA also ensures
individuals with disabilities have effective communication access to
FEMA programs and activities, consistent with requirements under
sections 504 and 508 of the Rehabilitation Act of 1973, 29 U.S.C. 794,
794d, and FEMA's Section 504 Implementation Plan.\251\
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\247\ FEMA's website has information and materials available in
languages other than English, including Spanish, French, German,
Arabic, Hausa, Vietnamese, Portuguese, Chinese, Japanese, Hindi,
Myanmar (Burmese), Korean, Nepali, Somali, Swahili, Tagalog, Tongan,
Creole, Fijian, and Russian. See https://www.fema.gov/disaster/recover/languages (last accessed Mar. 28, 2024).
\248\ FEMA Policy FP-256-23-001, available at https://www.fema.gov/sites/default/files/documents/fema_policy-language-access.pdf (last accessed Mar. 27. 2024).
\249\ FEMA's Language Access Policy requires the agency to have
processes in place to regularly identify and assess the language
assistance needs of the public and requires written translation of
vital documents in languages other than English based on assessments
of need and capacity. See Principles A. and C. of the policy
available at https://www.fema.gov/sites/default/files/documents/fema_policy-language-access.pdf (last accessed Mar. 27. 2024).
\250\ See e.g. ``FEMA Public Notice: 4618-DR-PA-Pennsylvania
Individual Assistance, Public Assistance and HMGP'' available at
https://www.fema.gov/disaster/4618/publicnotice (last accessed June
11, 2024); ``DR-4673-FL EHP Public Notice 001'' available at https://www.fema.gov/disaster-federal-register-notice/dr-4673-fl-ehp-public-notice-001 (last accessed June 11, 2024).
\251\ FEMA Section 504 Implementation Plan, available at https://www.fema.gov/sites/default/files/2020-06/fema_section-504-implementation-plan.pdf (last accessed Mar. 27, 2024).
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Comment: One commenter requested FEMA implement a public tracking
system of all FEMA actions that are subject to part 9. The commenter
stated a tracking system would ensure the public could assess the
cumulative impacts of a proposed action. The commenter also requested
FEMA accept public comment on proposed actions.
FEMA Response: FEMA does accept public comments on proposed actions
during both the early and final public notice periods, addressed in
Sec. Sec. 9.8 and 9.12. Early public notice allows the public to
provide initial input on alternatives to be considered and potential
issues with a proposed action.
[[Page 56997]]
The final public notice allows for the public to review the decision-
making process conducted by the agency and provide any input before the
action is taken. The agency has updated the rule to allow for
electronic notification of public notices to increase accessibility to
the public.
FEMA appreciates the commenter's suggestion that the agency provide
a public tracking system for part 9. FEMA provides data on actions
taken by the agency through the OpenFEMA Data Sets.\252\ FEMA is not
proposing any additional systems of record with this rulemaking.
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\252\ See FEMA, OpenFEMA Data Sets, https://www.fema.gov/about/openfema/data-sets (last accessed Mar. 25, 2024).
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4. Impacts to Floodplains and/or Wetlands
Commenters provided feedback on FEMA's review of and requirements
regarding impacts to floodplains and/or wetlands in part 9. While one
commenter provided support for the rule's prohibition against locating
a proposed action in a floodplain or wetland if a practicable
alternative exists outside the floodplain or wetland in proposed
Sec. Sec. 9.6(b)(3) and 9.9(d)-(e) and agreed with FEMA's approach of
first avoiding impacts, then minimizing any impacts that must occur,
and restoring impacted areas, other commenters provided recommendations
for additional edits to the regulatory text.
Comment: One commenter requested FEMA revise Sec. 9.10 to require
consideration of disproportionate and adverse effects on communities
with environmental justice concerns, whether direct, indirect, or
cumulative.
FEMA Response: FEMA appreciates the commenter's concerns regarding
equity and environmental justice. The agency incorporates natural
environment, social concerns, and economic aspects into the 8-step
process as part of the practicability analysis (addressed in 44 CFR
9.9). FEMA's revisions to part 9 reflect consideration of the type and
criticality of the action involved, the availability and actionability
of the data, and equity concerns in the implementation of Executive
Order 11988, as amended. FEMA also has an agency-wide initiative
focused on reducing barriers and increasing opportunities so all
people, including those from vulnerable and underserved communities,
can get help when they need it.\253\
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\253\ See https://www.fema.gov/emergency-managers/national-preparedness/equity (last accessed Jan. 24, 2024).
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The impact analysis addressed in Sec. 9.10 focuses on impacts to
and from floodplains and wetlands associated with a proposed action. As
part of the evaluation of impacts, FEMA considers the impacts addressed
in Sec. 9.10(d), which include factors that evaluate the impact of
flooding on public health, safety, and welfare. In addition to this
evaluation of flood hazard, FEMA reviews all proposed FEMA-funded
actions for potential disproportionate and adverse human health and
environmental effects on communities with environmental justice
concerns using a standardized environmental justice compliance review
process. FEMA believes these current practices address the commenter's
concern, and revisions to the final rule are not necessary.
Comment: One commenter requested FEMA identify both the impacts on
the floodplain and also the watershed in Step 4. The commenter noted
that the subsequent steps in the process described consideration of
this. The commenter also requested FEMA articulate and follow a ``no
adverse impact'' principle. The commenter requested FEMA specifically
address cumulative impacts of an action, as this is especially
important when assessing flood impacts, as development actions and land
use changes in a watershed would alter the floodplain.
FEMA Response: FEMA is not changing the current process in step 4
in this rulemaking. The implementation of the FFRMS would only expand
the floodplain of consideration in step 4 of the 8-step process. The
changes made in Sec. 9.10 are intended as clarifying edits for
consistency with other FFRMS implementing edits and are not substantive
policy changes. FEMA did not propose the policy changes suggested by
the commenter, and FEMA may take them under consideration in the
future. Note that under step 1, FEMA considers whether proposed actions
can impact or be impacted by a floodplain or wetland, not just whether
or not the proposed action is located in a floodplain or wetland. This
provision addresses the commenter's concerns regarding actions in the
watershed impacting floodplains and wetlands.
Comment: Another commenter requested FEMA retain the language in
current Sec. 9.10(c) stating that ``Regional Offices of the U.S. Fish
and Wildlife Service may be contacted to aid in the identification and
evaluation of potential impacts of the proposed action on natural and
beneficial floodplain and wetland values.'' The commenter stated that
given USFWS's particular expertise in understanding coastal and wetland
ecosystems, and the importance of maintaining the natural beneficial
values of these habitats, the commenter recommended retaining the
consultation language ``rather than merely stepping it down to
guidance.''
The commenter further recommended FEMA strengthen the language and
require FEMA at least contact the USFWS when making any such evaluation
in case the USFWS had concerns about or special understanding of the
values of those habitats, including for threatened and endangered
species.
FEMA Response: FEMA is not changing the current process in step 4
in this rulemaking and the implementation of the FFRMS would only
expand the floodplain of consideration in step 4 of the 8-step process.
This rule does not eliminate consultation with the edits made to Sec.
9.10, as the existing regulatory text merely states the agency ``may''
contact the USFWS for impact identification on the natural and
beneficial values of floodplains and wetlands. The edits made to Sec.
9.10 removes this optional, internal U.S. government process from the
regulation; the process will be further outlined in guidance. FEMA
notes this section did not address FEMA's consultation requirements
under the Endangered Species Act.
In this final rule, FEMA updates the definition of ``natural and
beneficial values of floodplains and wetlands'' to include
consideration of features or resources that provide environmental and
societal benefits. The definition also includes examples of what
``natural functions of floodplains and wetlands'' means. FEMA does not
believe additional edits to the final rule are required to address the
commenter's concerns regarding coastal and wetland ecosystems and
habitats for threatened and endangered species, because these concerns
are addressed in the definition at 44 CFR 9.4. The definition provides
some examples but is not all inclusive, and FEMA will consider
providing additional examples in guidance to further clarify and
address the commenter's concerns.
FEMA edited Sec. 9.10(d)(2) for consistency with edits made in
Sec. 9.4 defining the natural and beneficial values of floodplains and
wetlands. Specifically, the edits to Sec. 9.10(d)(2) add providing
habitats and enhancing biodiversity under the living resource values
FEMA will consider in step 4 of the 8-step process. In step 4, FEMA
determines impacts to the floodplain, which include changes to the
hydraulics and hydrology of the floodplain which informs potential
impacts to protected species and their critical habitats. FEMA
[[Page 56998]]
will continue to perform Section 7 consultation under the Endangered
Species Act as required. FEMA reviews all applicable actions under the
Endangered Species Act, and such reviews are coordinated with the 8-
step decision-making process.
Comment: While a commenter expressed appreciation of FEMA's
recognition of the processes of storing floodwater and groundwater
recharge, the commenter recommended the rule clarify that floodwater
storage and groundwater recharge may have functions that extend beyond
the time and area of a flood (such as the base flood). The commenter
stated floodwater storage and groundwater infrastructure placed in the
floodplain may result in continued inundation of floodplain areas.
However, those types of infrastructure may be required to convey stored
floodwater to groundwater recharge sites, minimizing impacts of
flooding within the floodplain.
FEMA Response: Through the 8-step process, FEMA considers the
impacts to and from the floodplain including the natural and beneficial
functions of the floodplain and actions which may support development
within the floodplain. Additional clarifications are not required in
the regulatory text to address the commenter's concerns as the 8-step
process resolves these concerns overall.
Avoidance
Comments: Some commenters requested FEMA prioritize avoidance of
floodplains and wetlands as part of this rulemaking and FFRMS policy.
Two commenters wrote a primary intent of Executive Orders 11988, as
amended, and 11990 was avoidance of floodplains and wetlands
development and stated avoidance was the most effective risk reduction
strategy. Some commenters recommended FEMA issue guidance, with one
comment recommending the guidance describe how regional offices should
review projects post-Sackett v. EPA,\254\ and strengthen the
practicable alternatives analysis. Another commenter requested that the
agency incorporate FFRMS guidance into PA and HMA guidance.
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\254\ Sackett v. EPA, 598 U.S. 651 (2023).
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One commenter wrote the FFRMS was a process to assess the siting
and design of a proposed action, rather than a mere elevation standard
and requested FEMA promote avoidance as the preferred alternative to
actions that would modify or occupy floodplains or wetlands. The
commenter stated FEMA must consider design alternatives in Step 3 of
the 8-step process at Sec. 9.9. Three commenters wrote elevation and
floodproofing were often prioritized instead and requested FEMA
prioritize avoidance as the first alternative to actions that would
modify or compromise floodplain function as the most effective risk
reduction strategy, rather than using elevation or floodproofing as
first design alternatives. Two commenters agreed that FEMA should
strengthen Step 3 in Sec. 9.9 to emphasize avoiding federal actions in
floodplains and wetlands where practicable.
FEMA Response: While FEMA made edits to Sec. 9.2(d) to reorder the
agency's actions to prioritize minimizing the impact of floods on human
health, safety, and welfare in this part, those edits do not change
FEMA's long-standing requirement as part of implementation of Executive
Order 11988, as amended, to only perform or fund actions within or
affecting floodplains if those actions are the only practicable
alternative. See, e.g., new 44 CFR 9.9(d). Through the 8-step process,
FEMA will consider alternative locations, alternative actions, nature-
based solutions, and the no action alternative under the practicability
analysis. If there is no practicable alternative, FEMA may perform or
fund the action and will minimize any adverse impacts when doing so.
FEMA believes the commenters' concerns are unwarranted given this long-
standing process that is not changing as a result of the changes made
in this final rule.
FEMA agrees with one of the commenters that FFRMS is not merely an
elevation standard. As section G.2 of FEMA's FFRMS policy states
``[t]he FFRMS is a resilience standard. Particularly in cases where
elevation may not be feasible or appropriate for facilities, the FFRMS
floodplain, determined according to the process described in section C
of this policy, establishes the level to which a structure or facility
must be resilient. Resilience measures include using structural or
nonstructural methods to reduce or prevent damage; elevating a
structure; or, where appropriate, designing it to adapt to, withstand
and rapidly recover from a flood event.'' \255\
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\255\ See FFRMS policy, pg. 8.
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As explained above, FEMA has not proposed changes to the way that
the 8-step process is applied to wetlands. FEMA notes the definition of
wetlands in 44 CFR 9.4 has always been much broader than that under the
Clean Water Act (CWA). Thus, under current practice the 8-step process
has been applied to wetlands regardless of their jurisdictional status
under the CWA. However, the 8-step process does not have the same
requirements of Section 404 of the Clean Water Act. While FEMA does
consider new construction in wetlands, to include the placement of
fill, and consider alternatives, the 8-step process is not an
authorization or permitting process.
As previously explained, FEMA will distribute resources for the
public and SLTT partners and the public identifying what the FFRMS is,
and how the agency will implement the Executive Orders to further
assist applicants for FEMA-funded assistance programs. FEMA will also
provide technical assistance through the agency's regional offices in
support of FFRMS implementation. FEMA notes while the PA and HMA
guidance documents are instructive to applicants, FEMA's regulations at
44 CFR part 9 control the agency's actions for all of FEMA's programs.
5. Zero/No Rise
Comments: Some commenters requested FEMA implement a ``zero-rise''
or ``no rise'' standard in the 8-step process. Four commenters stated
that FEMA should require a ``zero rise'' standard for Federal actions
where a regulatory floodway had not been designated. The commenters
noted FEMA's edits to Sec. 9.11 but recommended an additional edit to
not permit any increase in flood levels when a regulatory floodway had
not been designated.
Another commenter raised concerns about these requirements in the
FFRMS policy. The commenter stated that the requirement for FEMA-
regulated floodplains without a floodway in the FFRMS policy was
unreasonable. The commenter wrote the requirement to include all
anticipated development was challenging for applicants, as anticipated
development might never happen or substantially change due to the
project approval process and recommended limits be placed on what was
included in the anticipated development to make the standard more
reasonable.
FEMA Response: The changes made to Sec. 9.11(d)(4) provide
clarification that the agency will continue to require the NFIP's
minimum standard (currently 1-foot rise) or, consistent with Sec.
9.11(d)(6), a more restrictive standard adopted by a community. This
has been a long-standing requirement of the NFIP.\256\ FEMA's edits
help ensure consistency with the NFIP's minimum standard while allowing
the flexibility to utilize
[[Page 56999]]
a community's own more restrictive standards.
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\256\ 44 CFR 60.3(c)(10).
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FEMA did not propose to prohibit any increase in flood levels when
a regulatory floodway has not been designated, and prefers not to make
such a change at this stage of the rulemaking. The current process for
determining increases in floodplains when a regulatory floodway has not
been designated is consistent with the requirements of the NFIP and of
many communities throughout the country. FEMA may take the commenter's
suggestion under consideration in the future.
6. Prohibiting the Use of Fill
Comments: Some commenters also requested FEMA prohibit the use of
fill for elevation in the 8-step process. Commenter requested FEMA
consider the impacts of using fill to achieve elevation requirements.
One commenter stated elevation could have damaging impacts if
implemented without considering stormwater runoff and that using fill
dirt to achieve floodplain elevation requirements could push stormwater
onto surrounding areas and worsen or create flooding problems for
adjacent properties. Another commenter stated that while intended to
reduce flood risk, using fill dirt to achieve floodplain elevation
requirements could exacerbate flooding in the surrounding area. This
commenter also noted that placing fill in floodplains could severely
impact floodplain and wetland ecosystems that are critical habitat for
endangered species. Some commenters referenced a recent TMAC report
that identified several concerns and perverse incentives from the use
of fill to achieve elevation and recommended FEMA discourage the use of
fill. Commenters requested FEMA revise Sec. 9.11 to prohibit the use
of fill to achieve elevation requirements in the FFRMS floodplain.
Where fill is unavoidable, commenters requested FEMA require that a
project retain the volume of water onsite that is equivalent to the
volume of fill used or have adequate compensatory flood storage
requirements. One commenter requested that in the Special Flood Hazard
Area, FEMA require elevation to meet FFRMS requirements to be on an
open foundation. Another commenter recommended that where the use of
fill was necessary as a last resort, added measures should be required
to replace the on-site ecosystem benefits of disturbed wetlands.
FEMA Response: FEMA appreciates the commenters' concerns regarding
the use of fill and agrees that the impacts of its use must be
considered. As part of Step 4 where FEMA identifies impacts, the agency
identifies any impacts to the floodplain which would include increasing
flood risks to adjacent areas. In Sec. 9.11(d)(4) and (d)(6), FEMA's
minimization requirements ensure that fill within regulatory floodways
or floodplains where no regulatory floodway is designated will
generally not increase flood levels within the community. These
minimization requirements ensure consistency with the NFIP or any more
restrictive Federal, State, or local requirements. Until a regulatory
floodway is designated, no fill is permitted within the base floodplain
unless it is demonstrated that the cumulative effect of the proposed
development, when combined with all other existing and anticipated
development, will not increase the water surface elevation of the base
flood more than the amount designated by the NFIP or the community,
whichever is most restrictive.\257\ Under Sec. 9.11(d)(4), fill is
also prohibited within a designated regulatory floodway that would
result in any increase in flood elevation within the community during
the occurrence of the base flood discharge. FEMA prioritizes elevation
on open works over elevation on fill in Sec. 9.11(d)(7), requiring
elevation on open works rather than on fill in coastal high hazard
areas and elsewhere, as practicable.
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\257\ 44 CFR 9.11(d)(4).
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The substance of the requirements in Sec. 9.11(d) was not changed
as part of this final rule. FEMA did not propose to prohibit elevation
on fill as suggested by some of the commenters, and prefers not to
implement such a change at this stage of the rulemaking. FEMA will
remain cognizant of the potential impacts of use of fill as part of the
project approval process as described above in the 8-step process, and
may take the comments under consideration for further action at a
future date.
The revisions to part 9 do not change FEMA's long-standing
requirement as part of implementation of Executive Order 11988, as
amended, to only perform or fund actions within or affecting
floodplains and wetlands if those actions are the only practicable
alternative. See, e.g., new 44 CFR 9.9(d). No further edits are
required to part 9 to address the commenter's concerns regarding fill
in wetlands. As FEMA's current part 9 process currently prohibits
actions in wetlands where there is a practicable alternative, fill and
dredge practices to achieve elevation or to construct buildings/
facilities in wetlands would only be allowed in those instances where
there were no alternatives and the need to perform the action
outweighed agency's requirements outlined in 44 CFR 9.9(e)(2). New
Sec. 9.11(e) (current Sec. 9.11(f)) requires restoration where
applicable.
FEMA appreciates the commenters' reference to the recent TMAC
recommendations on the use of fill. The TMAC recommended FEMA
consolidate and clarify fill requirements for the NFIP in 44 CFR 60.3
and consider prohibiting the use of fill as an elevation technique for
residential and commercial structures in the SFHA (both coastal and
riverine); prohibiting fill as a floodproofing technique; and allowing
a limited amount of fill for bridges, dams, and wastewater treatment
facilities along with other uses functionally dependent on proximity to
water. The TMAC also recommended that FEMA (1) require communities
participating in the NFIP to quantify and put on file the impacts of
proposed fill and other development on flood stages and the environment
prior to issuing fill permits and (2) require notice to property owners
and appropriate environmental agencies when increases in flood
elevation or potential negative consequences were found and could not
be mitigated.\258\ These recommendations are clearly focused on the
NFIP, not the 8-step process in part 9 in this rulemaking. As described
above, the 8-step process contains sufficient flexibility to allow FEMA
to address concerns related to use of fill during Steps 4 and 5 of the
process. While FEMA is considering these recommendations consistent
with the NFIP requirements, the agency notes TMAC recommendations are
not binding on FEMA.
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\258\ See TMAC 2023 Interim Report, available at https://www.fema.gov/sites/default/files/documents/fema_rm-tmac-2023-interim-report-30OCT2023.pdf (last accessed Mar. 28, 2024).
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Comment: One commenter wrote requesting that FEMA eliminate Letter
of Map Change (LOMC) exceptions for sites. The commenter cited HUD's
proposed rule and stated that an exception could incentivize adding
fill in a floodplain, which could lead to a reduced floodplain
function, as well as increased flood risk to surrounding properties.
FEMA Response: FEMA's regulation does not specifically except areas
or sites where FEMA has issued a Letter of Map Change (LOMC) from the
8-step process. In their original regulation, HUD did have a specific
exception for any non-wetland site in a floodplain for which FEMA had
issued a final Letter of Map Amendment (LOMA), final
[[Page 57000]]
Letter of Map Revision (LOMR), or a final Letter of Map Revision Based
on Fill (LOMR-F) that removed the property from a FEMA-designated
floodplain. The exception under HUD's original regulation also included
conditional LOMAs, LOMRs, or LOMR-Fs if HUD or the responsible entity's
approval was subject to the requirements and conditions of the
conditional LOMA or LOMR.\259\ FEMA notes that HUD removed these
exceptions from 24 CFR 55.12(c)(8)(i) and(ii) in recent updates to
their regulation.\260\ As FEMA did not except those areas in the
regulation, the FEMA rule does not require revision for the FFRMS
floodplain to apply and for FEMA to conduct the 8-step process if those
areas are determined to be within the expanded floodplain. FEMA notes
the changes to part 9 in this final rule do not apply to the NFIP's
regulations on mapping and changes to FEMA maps. Those regulations are
found at 44 CFR part 70 et seq.
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\259\ See 24 CFR 55.12(c)(8)(i) and (ii) as of March 28, 2024.
\260\ 89 FR 30850 (Apr. 23, 2024).
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7. Practicability
Commenters also recommended changes to the practicability analysis
in the 8-step process.
Comments: A commenter stated concern that actions in floodplains
and wetlands would be allowed only as a last resort under the rule and
recommended that FEMA revise the regulations to more strongly clarify
to officials implementing the regulations that actions in floodplains,
especially those on already urbanized lands, could be allowed, provided
flood resilience measures were employed. Conversely, another commenter
recommended that FEMA prioritize avoidance as the first alternative to
actions that would modify or compromise floodplain function as the most
effective risk reduction strategy. The commenter recommended that where
avoidance cannot be achieved, resilient design should be incorporated
meaningfully. A third commenter stated the feasibility analysis should
consider whether right-of-way is not available and condemnation is
required.
FEMA Response: The revisions to part 9 do not change FEMA's long-
standing requirement as part of implementation of Executive Order
11988, as amended, to only perform or fund actions within or affecting
floodplains if those actions are the only practicable alternative. See,
e.g., new 44 CFR 9.9(d). This rule does not alter the 8-step process
requirement to evaluate practicable alternatives, which includes
consideration of locations outside of the floodplain or wetlands.
Through the 8-step process, FEMA considers alternative locations,
alternative actions, nature-based solutions, and the no action
alternative under the practicability analysis. If there is no
practicable alternative, FEMA will perform or fund the action and will
minimize any adverse impacts when doing so. FEMA believes the
commenters' concerns are unwarranted, given this long-standing process
that is not changing as a result of the changes made in this final
rule. Further, the practicability factors, which are outlined in 44 CFR
9.9(c), include the consideration of legal constraints, which would
generally encompass the acquisition of right-of-way for proposed
actions.
Comment: A commenter requested specific revisions to Sec. 9.9 to
include ``the presence of threatened or endangered species or their
critical habitat'' as an example under ``natural environment.'' The
commenter also requested FEMA include ``the presence, absence, and/or
effectiveness of local or state land management plans to conserve
natural values of the floodplains and wetlands at issue.'' Finally,
this commenter requested FEMA include ``participation of the impacted
community or communities in the Community Rating System program'' when
analyzing the practicability of alternatives to proposed actions in
floodplains or wetlands. The commenter requested FEMA edit Sec. 9.9 to
include examples of floodplain values, including ``wildlife habitat and
connectivity, including for threatened and endangered species'' in
Sec. 9.9(e)(2)(iv) and Sec. 9.9(e)(3)(iv).
FEMA Response: FEMA respectfully declines the commenter's request,
as the agency believes many of these examples would be covered under
the existing regulatory text, and no edits are required in this final
rule to address these concerns. Specifically, the final rule lists
``natural environment'' and includes ``habitat,'' which addresses the
commenter's concerns about the inclusion of threatened and endangered
species or their critical habitat. ``Social concerns'' includes ``land
patterns;'' under these factors, FEMA does consider local or state land
management plans when considering practicability. FEMA appreciates the
commenter's interest in the agency's Community Rating System (CRS)
program. FEMA notes that the commenter's concerns regarding threatened
and endangered species and their critical habitats is addressed in the
CRS program through credits for communities that protect threatened and
endangered species.\261\ A community's participation in the CRS program
does not impact an action's practicability under part 9. Updating part
9 to incorporate the CRS program is inappropriate, as the CRS program
provides discounts to individual policyholders in NFIP participating
communities and as explained above, part 9 applies only to Federally-
funded actions.
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\261\ See CRS Coordinator's Field Manual 2017 and 2021 Addendum,
available at https://www.fema.gov/floodplain-management/community-rating-system (last accessed Apr. 4, 2024).
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Further, FEMA's regulatory text is consistent with the Revised
Guidelines. Wildlife habitat and connectivity are already incorporated
into the rule in the definition of ``natural and beneficial values of
floodplains and wetlands.'' Specifically, that definition references
``Living Resource Values'' as ``providing habitats and enhancing
biodiversity for fish, wildlife, and plant resources.'' This language
encompasses the wildlife habitat and connectivity requested by the
commenter, and no edits are required to the final rule.
M. Other Comments
Comments: Two comments offered alternatives to the 8-step process
outlined in part 9. One commenter recommended retreating a mile from
every coast, river, and flood area and making those areas public lands,
swamps, or flood zones and that FEMA prohibit rebuilding when buildings
are destroyed due to sea level rise and convert those areas into their
suggested publicly owned buffer. Another commenter recommended using
eminent domain to reclaim flood damaged structures and reclaim lands,
wetlands, swamps, and other properties, allowing these areas to
naturally buffer and absorb flooding. The commenter stated private
property rebuilding should not take place in a flood zone using
taxpayer dollars, subsidies, grants, or any form of tax revenue.
FEMA Response: FEMA did not propose, and does not believe it would
be appropriate to implement, a standard that categorically prohibits
rebuilding within one mile of every coast, river, and flood area.
Comment: Another commenter stated there would likely be instances
where the cost of floodproofing or elevating Federal and non-Federal
buildings with the new FFRMS floodplain would be found to be
unreasonable. The commenter recommended against any kind of automatic
seizure or destruction in those instances, but rather suggested
developing a process in which factors
[[Page 57001]]
could be considered in determining the future disposition of such
buildings and encouraged the ability to grandfather-in some buildings
so they could maintain their functionality until such a time as they
actually suffered flood damage.
FEMA Response: Part 9 only applies to FEMA actions and the FFRMS
only applies to FEMA actions that are subject to the FFRMS. FEMA
defines ``action subject to the FFRMS'' as ``any action where FEMA
funds are used for new construction, substantial improvement, or to
address substantial damage to a structure or facility.''
Where part 9 applies, FEMA has always incorporated natural
environment, social concerns, and economic aspects into the 8-step
process as part of the practicability analysis. Specifically, if the
minimization measures for a proposed action were found to be
``unreasonable,'' that may fall under the economic aspect of the
practicability analysis. In these instances, FEMA has not proposed
automatic seizure or destruction procedures in the regulatory text or
policy. FEMA also works with program applicants to consider the
appropriate service life for the action during the 8-step decision-
making process to better understand the flood risks and safety
prioritization for individual actions.
Comment: A commenter asked if FFRMS would be used as a selection
tool for grant projects. The commenter noted that FEMA has previously
considered a project's scope or service area for funding and stated the
increase in floodplains from NOAA Atlas 14 revised flood maps would
limit federal funding for some projects due to previous design criteria
used on the downstream channels or development.
FEMA Response: FEMA will not use the FFRMS flood elevation as a
selection tool for grant projects; rather, it is a design requirement
for grant projects. Issues related to or impacting a project's scope or
service area remain unchanged. Finally, FEMA disagrees with the
commenter's statement that revised flood maps would limit federal
funding for some projects. Revised flood maps where the floodplains
increase would have no effect on project eligibility.
Comment: One commenter inquired whether the agency's findings would
be beneficial to the ``central Arizona project'' given the dangers of
flooding to the canal.
FEMA Response: FEMA appreciates the commenter's interest in this
regulation. The FFRMS CISA State of the Science Report provides a
review and update of the best-available, actionable science that can
support application of the Climate-Informed Science Approach
(CISA).\262\ FEMA respectfully refers the commenter to the State of the
Science Report and other tools to determine whether the FFRMS policy
initiative more broadly may have an impact on a local project of
interest. FEMA's part 9 controls the agency's implementation of
Executive Order 11988, as amended, and Executive Order 11990.
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\262\ Available at https://www.whitehouse.gov/wp-content/uploads/2023/03/Federal-Flood-Risk-Management-Standard-Climate-Informed-Science-Approach-CISA-State-of-the-Science-Report.pdf?trk=public_post_comment-text (last accessed Jan. 24,
2024), https://www.fema.gov/floodplain-management/intergovernmental/white-house-flood-resilience-interagency-working-group (last
accessed Jan. 24, 2024), and posted to the public docket for this
rulemaking at https://www.regulations.gov/document/FEMA-2023-0026-0007.
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Comments: Some commenters requested FEMA consider implementing the
FFRMS for the NFIP. Another commenter requested FEMA require disclosure
of past flood damages for FEMA-funded residential projects.
FEMA Response: As explained above, FEMA cannot accommodate the
commenter's request to integrate the FFRMS into the minimum floodplain
management standards for the NFIP because it is beyond the scope of
this rulemaking. The NFIP is a program through which property owners in
participating communities can purchase Federal flood insurance as a
protection against flood losses. In exchange, a community must adopt
and enforce floodplain management regulations that incorporate NFIP
minimum floodplain management criteria developed by the Administrator.
Further information regarding FEMA's minimum floodplain management
standards for the NFIP can be found at 44 CFR part 59 et seq. Any
update to those standards would require a rulemaking to revise the
appropriate regulatory sections of the CFR. By contrast, the FFRMS, as
implemented by this rulemaking, only applies to actions where FEMA
funds are used for new construction, substantial improvement, or
repairs to address substantial damage to structures and facilities.
Requiring disclosure of past flood damage for FEMA-funded
residential projects is beyond the scope of this rulemaking. However,
FEMA notes disclosure of prior flood damage, flood claims or losses,
and the status of repetitive loss properties is important, and FEMA is
pursuing options to require such disclosure, as evidenced in FEMA's
2023 legislative proposal submitted to the 118th Congress.\263\
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\263\ See https://www.fema.gov/flood-insurance/rules-legislation/congressional-reauthorization/legislative-proposals
(last accessed Jan. 24, 2024).
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N. Accessibility
In the NPRM, FEMA requested specific comment on accessibility
issues. FEMA sought 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. FEMA invited comments on strategies the agency could
employ to ensure accessibility requirements were met for properties
that would be impacted by the rule. Additionally, FEMA invited comments
on the cost and benefits of such strategies, including data that
supported the costs and benefits. FEMA received five comments on
accessibility. Some commenters provided FEMA with recommendations on
strategies regarding accessibility, while other expressed concerns with
potential increased costs of accessibility and elevation along with
potential conflicts regarding accessibility laws.
Comments: One commenter recommended FEMA consider accessibility
concerns as a factor in favor of selecting alternatives that minimize
residential and essential structures within the floodplain. The
commenter also stated projects should be designed to maximize both
access and resilience by practicing avoidance to the extent
practicable, consistent with Executive Order 11988. Another commenter
recommended FEMA issue design and regulatory guidance to address
concerns or challenges over the effects of proposed elevations on
accessibility of covered facilities, particularly those intended for
use by disabled and elderly populations and stated guidance could
ensure that floodproofing would not hinder accessibility. A third
commenter noted that elevating structures was not always feasible,
practical, or advisable and that seeking to meet both elevation and
accessibility requirements created even more challenges and increased
costs, sometimes rendering certain projects infeasible. Referencing
HUD's Fair Housing Act's guidance on BFE challenges, the commenter
recommended FEMA recognize the impracticability of requiring elevation
in certain situations consistent with HUD's guidance. The commenter
cited increased cost concerns and unintended consequences on
individuals who rely on accessible housing.
Some commenters stated FEMA's request for comment on accessibility
concerns indicated a conflict with implementation of the FFRMS and laws
[[Page 57002]]
governing accessibility. One commenter stated FEMA admitted the rule
could potentially conflict with several acts aimed at protecting
vulnerable populations such as the disabled and elderly. Another
commenter stated the agency indicated the proposed rule threatened to
violate the Fair Housing Act, the Americans with Disabilities Act, the
Architectural Barriers Act, and section 504 of the Rehabilitation Act
of 1973 and recommended FEMA identify and either exclude or limit these
scenarios when applying the proposed standard.
FEMA Response: Through the final rule, FEMA seeks to prioritize
minimizing the impact of floods on human health, safety, and welfare,
including those of vulnerable populations. FEMA's request for comment
in this area focused on ways the agency could further reduce or
mitigate the impacts of the FFRMS implementation on these populations.
Accessibility concerns would generally fall under social concerns and
legal constraints in assessing practicability in the 8-step process.
FEMA considers both the accessibility of a structure and the
accessibility to community resources for those impacted. FEMA only
takes action in the floodplain if there is no practicable alternative.
Further, if an alternative would render a building inaccessible, it
would not be a practicable alternative. FEMA agrees with one of the
commenters that proper guidance can help reduce the impacts of
elevation on accessibility. FEMA's existing guidance documents address
concerns associated with the effects of elevation on accessibility.
FEMA may address any additional specific concerns regarding FFRMS
implementation as they arise on a case-by-case basis or via additional
guidance.\264\
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\264\ See e.g. ``Hazard Mitigation Assistance Guidance,'' pgs.
59-60 available at https://www.fema.gov/sites/default/files/documents/fema_hma_guide_08232023_v1.pdf (last accessed April 2,
2024), ``Public Assistance Program and Policy Guide, pg. 151
available at https://www.fema.gov/sites/default/files/documents/fema_pappg-v4-updated-links_policy_6-1-2020.pdf (last accessed Mar.
12, 2024).
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FEMA appreciates the importance of providing affordable, accessible
housing. FEMA believes that the agency's policy approach provides
flexibility to address these concerns. For example, construction of
ADA-compliant access facilities or ramps is an eligible cost for FEMA's
HMA structure elevation and mitigation reconstruction projects for
homes. FEMA considered the costs and benefits associated with this
rule, including the overall increased costs of FEMA projects, in the
regulatory impact analysis provided on the public docket for this
rulemaking.\265\ FEMA believes that the benefits of preventing property
damage and potentially saving lives justify the costs of the rule.
These benefits are a result of the improved protection of structures
and facilities due to increased elevation and floodproofing standards
in FEMA's implementation of the FFRMS. This rule will help to ensure
that Federal investments are better protected from flood damage, and
that the natural values of floodplains are preserved. FEMA notes any
increased costs are generally eligible for funding under FEMA's
assistance programs subject to cost share requirements, including
accessibility needs.
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\265\ See https://www.regulations.gov/document/FEMA-2023-0026-0013. Specifically, see section 7.11.5 ``Elevation Requirement
Impacts on THUs.''
---------------------------------------------------------------------------
Regarding other conflicting laws, the commenters do not accurately
state FEMA's position. FEMA sought comment on how the implementation of
FFRMS may interact with specific legislation and strategies FEMA could
employ to ensure accessibility needs were met. FEMA's policy approach
provides flexibility to accommodate the specific needs of the
vulnerable populations the commenter references, and FEMA believes the
8-step process requirements, specifically in considering the
practicability of an action and potential impacts from the action,
detailed above help resolve accessibility concerns.
O. Regulatory Impact Analysis Comments
FEMA received several comments specific to the agency's RIA
associated with the rulemaking.
1. Alternatives
Comment: Commenters requested additional clarification and
recommended edits to the alternatives detailed in the RIA.
Specifically, two commenters stated FEMA should consider alternatives
to the proposed standard and the various FFRMS approaches. The
commenters stated that analyzing alternatives would include identifying
cases where imposing the standard would create new risks and costs
greater than the risk the standard sought to mitigate. The commenters
further requested FEMA delay the final rule until these analyses were
completed.
FEMA Response: Executive Order 11988, as amended, directs agencies
to perform or fund actions within or affecting floodplains only if
those actions are the only practicable alternative. Through the 8-step
process for individual actions, FEMA considers alternative locations,
alternative actions, nature-based solutions, and the no action
alternative under the practicability analysis. If there is no
practicable alternative, FEMA will perform or fund the action and will
minimize any adverse impacts when doing so.
On a project basis, FEMA has consistently leveraged benefit-cost
analysis in grant programs requiring evaluation of cost effectiveness,
such as those programs under Hazard Mitigation Assistance, and will
continue to do so along with minimum standards for floodplain
management across the agency's programs to help ensure that Federally
funded projects are both cost-effective and result in more resilient
communities. Additionally, during the 8-step process, FEMA will also
evaluate the impacts from the proposed action (in Step 4) when
determining the appropriate resilience or minimization measures in Step
5. The flexibility of the 8-step process allows FEMA to work with SLTTs
to select the appropriate minimization measure for the action. FEMA
requires that only practicable means to minimize harm to or within the
floodplain are required for compliance with 44 CFR 9.11, including
consideration of economic aspects. If, in the course of implementation,
FEMA identifies categories of projects for which the standard proves to
be generally impracticable, FEMA may take appropriate action--such as
issuing further guidance--at that time.
FEMA believes that the benefits of preventing property damage and
potentially saving lives justify the costs of the rule. These benefits
are a result of the improved protection of structures and facilities
due to increased elevation and floodproofing standards in FEMA's
implementation of the FFRMS. This rule will help to ensure that Federal
investments are better protected from flood damage, and that the
natural values of floodplains are preserved.
Comment: A commenter stated the RIA did not present information on
the population at risk, or the residual risk to human life associated
with each FFRMS approach. The commenter stated that FEMA should follow
the requirements of the Principles and Requirements for Federal
Investments in Water Resources (March 2013) and accompanying
Interagency Guidelines \266\ to provide information to
[[Page 57003]]
owners and residents of flood-prone property the residual flood risk
and availability of flood insurance. The commenter recommended that
FEMA provide an estimate of the population at risk by FFRMS approach
and an estimate as to how this would change by approach.
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\266\ Available at https://obamawhitehouse.archives.gov/sites/default/files/final_principles_and_requirements_march_2013.pdf (last
accessed Jan. 24, 2024) and https://obamawhitehouse.archives.gov/sites/default/files/docs/prg_interagency_guidelines_12_2014.pdf
(last accessed Jan. 24, 2024).
---------------------------------------------------------------------------
The commenter also requested information on FEMA's statements in
the RIA regarding potential for lives saved by the rulemaking. The
commenter stated that FEMA provided statistics on the number of
fatalities from flash and river flooding but was unable to estimate how
many of those fatalities would be avoided if the rulemaking were
implemented. The commenter also stated that FEMA did not provide a
quantification that would allow for a comparison among the FFRMS
approaches. The commenter wrote that FEMA did not clarify whether the
CISA would be safer than the FVA or 0.2PFA or whether elevating and
floodproofing properties were necessarily safer than the no action
alternative. The commenter further stated that floodproofing and
elevation could instill a false sense of security that encouraged
people to not evacuate or delay their departure in a flood. The
commenter recommended that FEMA provide additional information in the
RIA on this topic and include non-quantified costs to acknowledge it
was conceivable that elevation and floodproofing could result in an
increase in lives lost if those efforts provide a false sense of safety
to the public.
FEMA Response: FEMA is leveraging Executive Order 11988, as
amended, and the Revised Guidelines for the FFRMS rulemaking and the
FFRMS implementation. The Principles and Requirements for Federal
Investments in Water Resources and the accompanying Interagency
Guidelines (PR&G) do not generally apply to this rulemaking; rather,
those requirements apply to actions associated with water development
projects.\267\ FEMA will apply the PR&G requirements to those specific
actions as applicable, namely those actions where FEMA is taking an
action associated with a water development project. Although the PR&G
does not generally apply to this rulemaking, FEMA notes that the 8-step
process includes public notice requirements detailed for steps 2 and 7,
as further detailed in part 9.
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\267\ See ``Principles and Requirements for Federal Investments
in Water Resources at pg. 1, (Mar. 2013) available at https://obamawhitehouse.archives.gov/sites/default/files/final_principles_and_requirements_march_2013.pdf (last accessed Apr.
29, 2024) (``It is intended that these Principles and the supporting
Requirements and Guidelines be applied to a broad range of Federal
investments that by purposes, either directly or indirectly, affect
water quality or water quantity''); see also and ``Interagency
Guidelines,'' available at https://obamawhitehouse.archives.gov/sites/default/files/docs/prg_interagency_guidelines_12_2014.pdf
(last accessed Apr. 29, 2024).
---------------------------------------------------------------------------
Regarding the commenter's comment about how FEMA did not provide a
quantification that would allow for a comparison among the FFRMS
approaches, FEMA showed the comparison in Tables ES-12 and ES-13 within
the RIA. These tables present the cost, transfer payments, and benefit
estimates by FFRMS approach--where available data allow--and also
present estimates of costs, transfers, and benefits by grant program
for CISA, FEMA's primary approach.
FEMA added more text to the qualitative analysis within the
benefits section of the RIA accompanying this final rule to further
address the commenter's concerns regarding risk to human life and
whether elevating or floodproofing properties under any of the FFRMS
approaches is safer than taking no action. FEMA included a description
of qualitative benefits, which included the potential for lives saved,
savings in time and money from a reduced recovery period after a flood,
increased safety of individuals, increased public safety, reduced
personal and community impacts, and reduction in future health issues
related to flooding. FEMA does not believe that it would be appropriate
to refrain from taking this action based on the commenter's suggestion
that the rule could instill a false sense of security. The commenter
provided no evidence on this point, and FEMA does not believe it would
be appropriate to fund less resilient projects in an effort to avoid
making people feel secure in the event of a flood.
As explained in the NPRM, the CISA is FEMA's preferred policy
approach, as FEMA believes it has the potential to be the best and most
well-informed approach to building resilience in an equitable manner
and ensuring a reduction in disaster suffering. CISA is designed to
meet current and future estimates of flood risks unique to the location
and thus provide the best overall resilience, cost effectiveness, and
equity.
With regard to the commenter's recommendation that FEMA provide an
estimate of the population at risk by FFRMS approach, FEMA cannot
correlate population risk by floodplain expansion. FEMA could not use
Geographical Information System (GIS) data, as the database identifies
whether a project was in the floodplain, but because it did not
categorize projects according to their location, FEMA was not able to
distinguish projects located in coastal areas from those located in
non-coastal areas. Additionally, the dataset does not break out
multiple project worksites.
FEMA notes the agency's current alternatives analysis process
incorporates consideration of a range of flood mitigation practices.
FEMA considers the following alternatives: (a) no action; (b)
alternative locations; and (c) alternative actions, including
alternative actions that use natural features or nature-based
solutions. When practicable, FEMA avoids actions within the floodplain.
The flood minimization measures found in Sec. 9.11 are reliable
methods of providing resilience to structures. FFRMS flood resilience
measures consider both current and future flood risks to better protect
Federal investments. The elevation requirement in Sec. 9.11(d)(3)
applies to structures and also allows floodproofing for non-residential
structures. The FFRMS policy provides further explanation for
structures that must be located within the FFRMS floodplain must be
elevated or floodproofed to the FFRMS flood elevation. Additionally,
the policy clarifies facilities can use elevation or any other
appropriate minimization measure to protect the facility against the
FFRMS flood elevation. Minimization can include measures such as
ensuring the impacted public knows their flood risk and has awareness
of flood evacuation procedures.
2. Discount Rates
Comment: Two commenters requested FEMA implement the revised 2
percent discount rate from OMB Circular A-4 for this rulemaking to
represent future benefits more accurately. Another commenter requested
clarification on the discount rates used in the RIA. That commenter
recommended FEMA state that the analysis was conducted using the
prescribed 7 percent discount rate and requested FEMA provide a
sensitivity analysis using a 3 percent discount rate and a 10 percent
discount rate if appropriate.
FEMA Response: The new OMB Circular A-4 discount rate is effective
March 1, 2024, for regulatory analyses received by OMB in support of
proposed rules, interim final rules, and direct final rules, and
January 1, 2025, for regulatory analyses received by OMB in support of
other final rules. The
[[Page 57004]]
FFRMS proposed rule was published on October 2, 2023. Given this
timing, FEMA is using the previously established discount rate and is
not applying the new OMB Circular A-4 discount rate to this final rule.
For the RIA, FEMA provided discounted values using both 3 percent
(social rate of time preference) and 7 percent (opportunity cost of
capital) based on the version of OMB Circular A-4 that was in place at
the time of publication of the NPRM.
Comment: A commenter requested several clarifications on the
discount rates that were used within the RIA, including the discount
rate used to generate the figures in Appendix E (Benefits). The
commenter questioned why both the 3 and 7 percent discount rate for
benefits were used within the analysis when the 50-year present value
benefit uses a single 7 percent discount rate. And they sought
clarification on how the 7 percent discount rate was used for benefits.
FEMA Response: FEMA utilizes a 7 percent discount rate for
benefits, while the table(s) referenced uses both 3 and 7 percent
discount rates. The benefits per structure consist of a 50-year stream
of benefits, discounted to the year that the structure is constructed
using a 7 percent discount rate. Since the RIA estimates 10 years'
worth of projects, those benefits must be discounted again from the
year of construction to the present (i.e., to the beginning of Year 1)
and annualized for comparison with 10 years' worth of costs. FEMA
conducted its discounting from the year of construction to the
beginning of Year 1 and conducted its annualization using both 3 and 7
percent discount rates, per the version of OMB Circular A-4 that was in
effect at the time of publication.\268\ FEMA has clarified this in this
RIA.
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\268\ OMB Circular A-4, Regulatory Analysis, September 17, 2003,
pages 33-34. Available at: https://www.reginfo.gov/public/jsp/Utilities/a-4.pdf (last accessed Apr. 29, 2024).
---------------------------------------------------------------------------
3. Costs
Comment: A commenter requested clarifications and provided
recommendations regarding administrative costs in the RIA.
Specifically, the commenter asked for clarification on the
administrative costs in tables 85 and 86 of the RIA, which summarize
the low and high estimated impacts of the rule, stating these costs
were shown as being the same for all of the alternatives in those
tables while the RIA stated a range for the administrative costs. The
commenter also requested clarification on table ES-12 and other tables
that omitted administrative costs from the undiscounted total dollar
figures while those costs were included in the undiscounted costs in
tables 64-69 which show total costs by FFRMS approach. The commenter
requested FEMA reconcile the issue. The commenter stated FEMA
acknowledged there would be annual administrative costs but only
included those costs in the economic analysis for the first 10 years of
the period of the analysis. The commenter recommended FEMA either
include annual administrative costs as they apply after the initial 10-
year period or explain why they would no longer be included.
FEMA Response: The administrative costs are different in tables 85
and 86 in the RIA provided with the NPRM. FEMA created a range for
estimating the administrative costs for two circumstances: (1) if all
projects used the interagency Federal flood standard support tool (low
estimate, as represented in Table 85) and (2) if all projects used the
Job Aid (high estimate, as represented in Table 86) for the first 10
years under the CISA. In reality, the administrative costs will likely
fall somewhere between the low and high estimates. These tables are
still tables 85 and 86 in the RIA. Further, tables 64-69 show the costs
of the three different approaches (CISA, FVA, and 0.2PFA), which
include the administrative costs to show the total cost under each
approach.
Table ES-12 is a summary table that shows the costs of each
approach so that the reader can see the various options next to each
other. The administrative cost is separated out because if FEMA added
the administrative cost to each approach, it may be misinterpreted as
triple counting. To address the commenter's concerns, FEMA included
footnotes in Table ES-12 and Table ES-13. FEMA also removed the term
``total'' from the costs section within Table ES-12 and Table ES-13 as
they are not the total cost as they do not include the administrative
cost. The reader should add each individual approach to the FEMA
administrative cost to obtain the total costs in Section 7.12. For
example, CISA + FEMA administrative = total CISA cost.
FEMA examined the number of projects that will be subject to the
requirements in the first 10 years after the rule's publication. FEMA's
analysis focuses on the costs, benefits, and transfer payments (i.e.,
impacts on FEMA grants) that will result over a 50-year period from the
application of the requirements of the final rule to those projects,
for a total period of analysis spanning 60 years. The costs and
transfers occur in the first 10 years of the 60-year period because
that is when the initial investment to elevate or floodproof those
projects takes place. This is an upfront cost that occurs when the
project is constructed. However, the benefits of the final rule are
estimated over the 50-year useful life of the affected structures.
Comment: A commenter recommended FEMA use a more general cost index
such as the Gross Domestic Product-Implicit Price Deflator (GDP-IPD) or
an appropriate construction cost index instead of the U.S. Department
of Labor's Bureau of Labor Statistics Consumer Price Index (CPI) to
establish a 2021 common dollar basis.
FEMA Response: FEMA used CPI in majority of the analysis within the
RIA, such as to adjust historical grant obligation amounts to constant
dollars. However, FEMA used an Engineering News Record (ENR)
Construction Costs \269\ factor to adjust the construction values to
2021 costs within the NPRM RIA. The ENR was used to represent the
change in costs from 2016 to 2021. The value selected was a national
cost average. This value is consistent with the approach used to
calculate the initial construction costs, which applied the national
average square foot cost. The adjustment factor from 2016 to 2021
applied was 1.17 or a 17% increase in construction costs over the
period analyzed. FEMA used the same ENR data for the final rule's RIA
but adjusted it to 2022 costs. While other sources indicated a larger
range of construction cost increase, the ENR value was selected in the
2022 report as a lower-bound approach to the benefits analysis.
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\269\ Construction Cost Index History. Engineering News Record
(ENR). Available at: https://www.enr.com/economics/historical_indices/construction_cost_index_history (last accessed:
Mar. 18, 2024).
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Comment: A commenter stated that FEMA acknowledged the costs of
operating and maintaining elevation and floodproofing projects were not
included in the RIA but instead were zeroed out. The commenter stated
that while additional costs for operating and maintaining an elevated
structure would be low, the costs for floodproofed structures could be
substantial if floodproofing entailed generator/pumping stations. The
commenter stated the omission was particularly glaring given the 50-
year design life of the project and recommended FEMA include some
reasonable estimate of these costs rather than zeroing them out, though
the commenter did not provide any such estimates. The commenter also
stated the RIA was incomplete without information on the estimated
costs of
[[Page 57005]]
improving the flood resilience of facilities; however, the commenter
did not provide a data source to use for estimating the cost of
increased flood resilience for facilities.
FEMA Response: FEMA appreciates the commenter's concerns. FEMA
requested available data that would assist FEMA in estimating the
impact of the proposed increased flood resilience standards on specific
types of facilities, including examples showing the cost of similar
resilience measures, case studies, or other relevant information. FEMA
did not receive any data. Instead, FEMA discusses the non-quantifiable
costs within Qualitative Discussion of Additional Potential Costs
section. FEMA was able to quantify the number of facilities that would
be impacted by the rule as well as the incremental costs of applying
the FFRMS to these facilities. FEMA conducted the analysis on
facilities based on the best available information. FEMA acknowledges
that there are lifecycle costs associated with floodproofing of
structures, but these costs are unique to the type of structure and
floodproofing methods used, and not generalizable across all potential
projects nationwide. FEMA discusses these costs qualitatively in
Section 7.11.3 of the RIA.
FEMA included a qualitative summary of the impacts that could not
be quantified, such as increased resilience standards for facility
projects, additional costs for adding requirements to buildings with
basements, diversion of projects out of the floodplain, lifecycle
maintenance costs for floodproofing and project delays and forgone
projects, within the executive summary and conclusion section.
FEMA discusses facilities and the challenges with estimating
economic impacts of the FFRMS. Because there are many methods for
making facilities resilient, and due to the wide variety of projects
considered facilities, FEMA could not make quantitative estimates of
economic impacts for these projects that can be applied for all
facility types nationwide.
Comment: A commenter requested FEMA further explain the omission of
specific quantifiable costs, such as the costs for projects that may be
diverted out of the floodplain, impacts to projects with existing
basements, project delays, or foregone projects, that would result from
the rule. The commenter stated these costs vary in terms of data and
method calculation ability. In particular, the commenter questioned why
impacts to structures with basements were not quantified because data
are available about, for instance, the prevalence of basements
geographically and depth-damage functions for structures with
basements, as well as information from the Census of Construction. The
commenter also questioned whether diversion out of the floodplain is a
cost of the rule because, presumably, a project would only be diverted
if a project owner determined that net benefits would be higher without
the project in the floodplain.
FEMA Response: FEMA identified these as data limitations because
the agency does not generally track the information referenced by the
commenter. For example, FEMA does not track project applications where
the applicant withdraws their application for Federal funding due to
floodplain considerations.
In addition, FEMA appreciates the commenter providing data sources
for structures with basements and has considered this data. These data
sources provide national-level summary statistics and geographic
information on structures with basements. FEMA is unable to apply this
data to FEMA's project level data, since FEMA databases do not include
fields for structures with basements, and FEMA is unable to correlate
the Census of Construction data with its own project-level data.
Additionally, this data pertains to residential construction, and only
a small number of FEMA actions subject to the FFRMS are residential
construction.
4. Benefits
Comment: A commenter requested clarification on the discrepancy on
``Appendix E: Benefits Net Present Value'' heading on page 213, which
would appear to indicate that Tables 1-18 display the Net Present
Values, but the column headings in these tables are labeled ``. . .
Present Value Benefits. . . .'' The commenter stated that the various
values presented in said tables are elsewhere presented as Benefits
rather than Net Benefit, as seen in a comparison of Table 84 with
Tables 17 and 18 of Appendix E.
FEMA Response: The tables referenced by the commenter show the
Present Value of the benefit streams expected from implementation of
this rule. FEMA updated the table headings and footnotes as
appropriate.
Comment: A commenter requested clarification on how the results of
the analysis were presented in tables. Specifically, the commenter
questioned the presentation of a single estimate for benefits the FFRMS
approaches in the conclusion, the lack of monetization for benefits
discussed qualitatively, how none of the FFRMS approaches have a
positive net benefit, and how there was no rationale for not selecting
0.2PFA as the preferred approach, as the commenter calculates it is the
FFRMS approach with the greatest net benefit.
FEMA response: The benefits are not the same for all of the FFRMS
approaches. FEMA could not quantify every cost and benefit associated
with this rule. However, FEMA was able to quantify the number of
structures and facilities that would be impacted. FEMA quantified a
portion of the benefits for the CISA for all PA Category E projects
that are subject to the FFRMS. Specifically, FEMA estimates the present
value benefits of one additional foot of freeboard for the 50-year
useful life of PA Category E projects undertaken during the 10-year
period of analysis, with the assumption that there will be a 59-inch
SLR.
FEMA was only able to estimate quantitative benefits for PA
Category E projects affected using CISA. FEMA cannot compare
quantitative benefits to the costs for IA or HMA, since FEMA does not
have a reliable data source to estimate the benefits for projects
covered by these programs; HMA data cannot be broken out by building
types and IA data is limited to residential-related projects, which are
not included in the 2022 report. The table that the commenter created
making such a comparison to demonstrate that 0.2PFA is the FFRMS
approach has the highest net benefits is not accurate. The present
value of benefits using CISA is not the same as the present value of
benefits using FVA or 0.2PFA, as the number of projects impacted by
each approach varies. FEMA did estimate the impact on PA projects for
FVA, 0.2PFA and CISA in sections 7.14.2.1 through 7.14.2.6 within the
RIA. However, these estimates cannot be applied to IA and HMA projects
for the reasons stated above. In addition, there are additional costs
and benefits that FEMA could not quantify for this analysis so FEMA
discussed them in a qualitative manner. For example, qualitative
benefits include the potential for lives saved, savings in time and
money from a reduced recovery period after a flood, increased safety of
individuals, increased public safety, reduced personal and community
impacts, and reduction in future health issues related to flooding.
Accordingly, FEMA is unable to use the commenter's table to select
the ``alternative with the greatest net benefits'' as the commenter
stated, since the table is not inclusive of all of the rule's
quantified and unquantified benefits.
Comment: A commenter sought clarification about how FEMA
[[Page 57006]]
compared the costs and benefits within the RIA. The commenter stated
that it appeared as if the costs pertaining to ``14,427 PA, IA, and HMA
structures'' are being associated with, or charged to, the benefits
associated with ``1,173 PA Category E projects.''
The commenter also expressed confusion over how FEMA used +5-ft
freeboard for costs and then used +1-ft freeboard for benefits. The
commenter asserted that the statement ``FEMA does not have data to
quantify the benefits of additional freeboard'' was confusing because
depth-damage functions are available. They presumed that this would
account for CISA's poor economic performance relative to the other
approaches.
FEMA Response: FEMA's quantitative benefit estimates are based on a
2022 report that analyzed the benefits of 1 foot of additional
freeboard for various building types. FEMA used this report to quantify
the benefits of 1 foot of freeboard, as this was the only data that was
available. This allowed FEMA to monetize the benefits of an additional
foot of freeboard for non-residential PA projects (i.e., Category E
projects). FEMA was unable to use the benefits study to estimate the
benefits for HMA and IA projects, since HMA data cannot be broken out
by building type, and IA data is limited to residential projects.
Accordingly, FEMA's analysis acknowledges that when comparing the total
monetized costs and benefits of the rule, it is an imperfect
comparison: the total monetized costs are attributable to elevating or
floodproofing PA, IA, and HMA structures between 1 and 5 feet
(depending on the FFRMS approach used and the location of the project),
while the total monetized benefits are attributable to elevating or
floodproofing PA projects one additional foot.
FEMA does not claim that the benefits to PA Category E projects are
associated with, or charged to, any of the other projects in this
analysis. FEMA was able to estimate costs for PA, HMA, and IA, but only
able to quantify benefits for PA Category E. FEMA expects benefits for
all types of projects but does not have sufficient data for a
quantitative estimate.
FEMA could not apply depth-damage functions to these projects,
since they are only applicable to elevation or floodproofing at
specified levels above the base flood elevation for specified flood
zones. FEMA's project databases only identify whether a project is in
the 1 percent annual chance floodplain and do not show what flood zone
a project is located in. Because of this, FEMA cannot apply depth-
damage functions to individual projects to determine the benefits from
elevation or floodproofing.
FEMA supplements the monetized benefits with a qualitative
discussion of additional benefits that FEMA could not monetize.
Specifically, FEMA identified qualitative benefits, including
reductions 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.
Comment: A commenter requested clarification about how FEMA would
determine the necessary height to maximize net benefits for a given
project under CISA. Specifically, the commenter asked what assumptions
FEMA would use (e.g., a 59-inch SLR, an 8.5 RCP) to determine
elevations that result from ``using the best-available, actionable
hydrologic and hydraulic data and methods.''
FEMA Response: In the RIA, FEMA provided a summary of the estimated
benefits per building type for PA projects. The analysis included both
mitigation types (elevation and floodproofing) for 8-inch, 39-inch, and
59-inch SLR and both mitigation types for 4.5 and 8.5 RCP. For FEMA's
primary estimate, FEMA used 59 inches of SLR due to it being the
closest SLR option to the vertical rise, in accordance with FEMA's
CISA+5-ft assumption. CISA is the preferred approach for the FFRMS if
the data are available. Since 5 feet is equivalent to 60 inches (5 x 12
inches per foot), 59-inch SLR is the closest SLR option that FEMA had
available for this portion of the analysis.
However, in practice, FEMA's FFRMS policy sets minimum elevation
requirements to account for possible changes in future flood hazards
and therefore, under the CISA, the elevation or floodproofing height
would vary by location and criticality of the project. As explained
above, FEMA is relying on the FFRMS CISA State of the Science Report to
determine what CISA data is actionable and available and will use the
FFRMS Job Aid methodology to determine the CISA, FVA, and 0.2PFA for
FFRMS actions. The FFRMS CISA State of the Science Report \270\
discusses the SLR scenarios and what factors to consider when selecting
the appropriate SLR projection. The FFRMS Job Aid recommends using the
intermediate SLR scenarios for non-critical actions and intermediate-
high SLR scenarios for critical actions.\271\ As part of initial
implementation, FEMA intends to leverage the FFRMS Job Aid as explained
above.
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\270\ FFRMS CISA State of the Science Report, pg. 22, available
at https://www.whitehouse.gov/wp-content/uploads/2023/03/Federal-Flood-Risk-Management-Standard-Climate-Informed-Science-Approach-CISA-State-of-the-Science-Report.pdf?trk=public_post_comment-text
(last accessed April 4, 2024). The report recommends that agencies
use the latest interagency Federal guidance for regionally-based SLR
projections. The underlying SLR science reported used for the report
is based on the IPCC AR6 which uses shared socioeconomic pathways
(SSPs) rather than the older Representative Concentration Pathways
(RCPs). The five SLR scenarios described in Sweet et al. (2022),
page 10, are based on global mean sea level (GMSL) target values at
2100. These sea level scenarios are related to but distinct from the
emissions pathway scenarios in the IPCC AR6. The intermediate SLR
scenario corresponds to a GMSL target value in 2100 of 1m and the
intermediate-high SLR corresponds to GMSL target value in 2100 of
1.5M.
\271\ FFRMS Job Aid, pg. 21.
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Comment: A commenter requested clarification regarding a footnote
in the RIA's Executive Summary, in which FEMA explains the scope of its
analysis is limited to impacts from affected projects in the initial 10
years. The commenter questioned the validity of the analysis under the
assumption that the analysis relied on a sample of a larger set and
recommended that FEMA coordinate with water resource agencies for
additional data on elevation and floodproofing.
FEMA Response: This commenter is misinterpreting the footnote. The
footnote is explaining why FEMA has limited the analysis to impacts
from projects in only the initial 10 years of the rule's
implementation. It is not saying that the cost analysis is relying on a
sample (the first ten years of implementation) of a larger set (the
period of time in which the regulation would be in effect) as
suggested.
Comment: One commenter wrote that the rule increased the efficiency
and financial benefits of Federal investments and that it would be
irresponsible to continue spending taxpayer dollars based on a
backwards-looking assessment of flood risk. The commenter agreed with
FEMA's assessment that the benefits of the rule justified the rule's
costs. The commenter requested FEMA provide a more comprehensive and
accurate accounting of benefits in the RIA and quantify and monetize a
wider range of benefits, although the commenter did not provide any
specific suggestions for doing so. The commenter noted that many of the
RIA's unquantified benefits were of profound importance to communities
and families residing in the floodplain, including lives saved, access
to evacuation routes and essential services, better long-term health
outcomes, and reduced recovery times. Additionally, the commenter
recommended FEMA
[[Page 57007]]
place greater emphasis on describing, quantifying, and monetizing the
benefits of conserving floodplains and wetlands and encouraging nature-
based solutions. Finally, the commenter suggested FEMA consider a more
nuanced approach to the final rule's distributional effects by
assessing how the rule's benefits might be distributed across
populations.
FEMA Response: While monetizing the reduction in damages that is
anticipated from the rule would be a useful way to show the rule's
benefits, not all of the benefits can be effectively monetized with
available data. FEMA thoroughly researched methods to quantify and
monetize as many benefits as possible for the proposed rule but did not
find adequate sources to reliably quantify or monetize most benefits.
FEMA continues to research methods and data for quantifying benefits,
but since publication of the proposed rule, has not found data sources
that would enable FEMA to further quantify the benefits of incremental
amounts of freeboard. In addition, FEMA did not receive any data or
methods from commenters that would allow FEMA to quantify what it found
to be unquantifiable impacts. Accordingly, consistent with direction by
OMB Circular A-4 for costs and benefits that are difficult to quantify,
FEMA provided a literature review of relevant benefits that could be
realized from flood mitigation, an analysis of benefits quantified for
the rule, a qualitative description of additional benefits that could
be realized from the rule, and a discussion of why FEMA was unable to
quantify such benefits.
Regarding the commenter's recommendation to assess how the rule's
benefits might be distributed across populations, FEMA agrees that
ensuring equal access to FEMA funding for PA, IA, and HMA projects is
important. The projects affected by this rule will be a subset of--only
new construction or substantial improvement--projects currently funded
through these programs. Accordingly, current FEMA initiatives address
these concerns. For example, FEMA has an agency-wide initiative focused
on reducing barriers and increasing opportunities so all people,
including those from vulnerable and underserved communities, can get
help when they need it. Additionally, FEMA reviews all proposed FEMA-
funded actions for potential disproportionate and adverse human health
and environmental effects on communities with environmental justice
concerns using a standardized environmental justice compliance review
process.
5. Benefit Cost Analysis (BCA)
Comment: A commenter sought clarification of the term ``cost-
effective'' within the RIA.
FEMA Response: FEMA added the definition of cost-effectiveness used
within the RIA as ``any alternative or measure whose discounted
benefits are greater than its discounted costs'' within the RIA to
clarify this. FEMA acknowledges that it is possible define cost-
effectiveness as ensuring the most efficient use of a given amount of
resources, but notes that the definition in the RIA is consistent with
BCA principles applicable to some FEMA grant programs.
Comment: A commenter stated that the gross omissions in the ``BCA''
render it useless, if not misleading as a BCA. The commenter referenced
guidelines at both 40 CFR 1502.22 and Chapter III of Principles,
Requirements and Guidelines for Water and Land Related Resources
Implementation Studies (PR&G). The commenter did not provide data that
would allow FEMA to fill the stated ``omissions.''
FEMA Response: The commenter appears to be using the term ``BCA''
to refer generally to FEMA's regulatory impact analysis pursuant to
E.O. 12866 and comparing the analysis to NEPA guidelines and PR&G. To
the extent the commenter is referring generally to FEMA's regulatory
impact analysis, FEMA recognizes that it has limitations based on
available data, and provided qualitative analysis where it could not
complete a quantitative analysis. OMB Circular A-4--the operating
guidance for regulatory analysis conducted pursuant to E.O. 12866--
acknowledges that it may not be possible to express in monetary units
all of the important benefits and costs.\272\ Circular A-4 directs that
if monetization is not possible, agencies should explain why and
present all available quantitative information, and if agencies are not
able to quantify the effects they should also present a description--
along with strengths and limitations--of the unquantified effects.
---------------------------------------------------------------------------
\272\ OMB Circular A-4, Regulatory Analysis, September 17, 2003,
pages 33-34. Available at: https://www.reginfo.gov/public/jsp/Utilities/a-4.pdf (last accessed Apr. 29, 2024).
---------------------------------------------------------------------------
FEMA adhered to this guidance. Although FEMA could not estimate the
cost of the rule for facilities due to the highly project-specific
nature of facilities projects, and the numerous options for making them
resilient, FEMA was able to quantify the number of impacted facilities
and explained why monetization was not possible. FEMA was unable to
estimate the number of projects that would use each FFRMS approach per
FEMA's policy, and so FEMA conducted an analysis assuming each FFRMS
approach was the only one to demonstrate the range of possible costs.
For benefits, FEMA acknowledged that the quantified estimates--where
data allowed for quantification--represent only a portion of the
increased risk reduction that will be achieved through this rule and
discussed qualitatively other important benefits of the rule. When
considering the total costs of the rule, FEMA noted that its choice of
CISA as its preferred approach will use the best available and
actionable scientific data to tailor future flooding risk to each
project, ensuring that projects are built only to the elevation
necessary and thus maximizing net benefits.
Comment: A commenter stated that the RIA did not comply with
Circular A-4's requirements to present the net benefits for the
different alternatives and provide a threshold or incremental analysis
supporting the selection of FEMA's preferred alternative.
FEMA Response: As discussed above, Circular A-4 acknowledges that
it may not be possible to express in monetary units all of the
important benefits and costs. It notes that when important benefits and
costs cannot be expressed in monetary terms, the calculation of net
benefits is less useful, and ``can even be misleading,'' because in
such cases, the calculation of net benefits do not provide a full
evaluation of all of the relevant benefits and costs. Instead, Circular
A-4 advises that in such circumstances agencies should exercise
``professional judgment'' in determining how important the non-
quantified benefits and costs may be in the context of the overall
analysis.\273\
---------------------------------------------------------------------------
\273\ OMB Circular A-4, Regulatory Analysis, September 17, 2003,
page 10. Available at: https://www.reginfo.gov/public/jsp/Utilities/a-4.pdf (last accessed Apr. 29, 2024).
---------------------------------------------------------------------------
As the commenter points out, Circular A-4 acknowledges that
agencies ``should also consider conducting a threshold analysis to
understand the potential significance of these factors to the overall
analysis.'' FEMA considered including a threshold analysis, but such an
analysis still would not have provided insight into the difference
between the benefits of CISA, FVA, and 0.2PFA as data available to
estimate quantitative benefits was limited to only one foot of
freeboard for PA structure projects. The difference in unquantified
impacts between the FFRMS approaches would result in comparison of
thresholds comprising different sets of impacts. Accordingly, FEMA used
its
[[Page 57008]]
professional judgment to determine that CISA is the best policy
decision because it is meant to ensure that amount of additional flood
protection for each project is determined by the best available,
actionable hydrologic and hydraulic data and methods that integrate
current and future changes in flooding based on climate science.
Comment: A commenter stated that the FFRMS RIA does not comply with
the requirements for a Cost-Effectiveness Analysis (CEA) as detailed in
OMB Circular A-4.
FEMA Response: FEMA recognizes it has limitations in the available
data and agrees the RIA was not intended to be a CEA, as defined by OMB
Circular A-4. FEMA notes that OMB Circular A-4 provides agencies with a
choice of analytical approaches for regulatory analysis and does not
require agencies to perform a CEA.\274\ As mentioned above, FEMA
provided qualitative analysis where it could not complete a
quantitative analysis, as allowable under OMB Circular A-4. FEMA was
unable to conduct a CEA because FEMA only had data available to
estimate quantitative benefits of only 1 foot of freeboard for
structures under the PA program. FEMA did not have data available to
conduct the same quantitative analysis for projects under the IA and
HMA grant programs or for additional levels of freeboard as applicable
under each of the FFRMS approaches. Therefore, FEMA completed a Benefit
Cost Analysis as it is more appropriate for this rulemaking given the
wide range of unquantifiable benefits expected to accrue from each
alternative.
---------------------------------------------------------------------------
\274\ OMB Circular A-4, Regulatory Analysis, September 17, 2003,
pages 9-10. Available at: https://www.reginfo.gov/public/jsp/Utilities/a-4.pdf (last accessed Apr. 29, 2024).
---------------------------------------------------------------------------
6. Other RIA Comments
Comment: FEMA requested public comment on any available data,
examples showing the costs of similar resilience measures, case
studies, or other relevant information that would assist FEMA in
estimating the magnitude of the impact of the FFRMS on specific types
of facilities. A commenter recommended contacting the ``four water
resource agencies'' identified as ``USACE, BuRec, DOE-TVA, and NRCS,''
to what information in their current databases or relevant studies
might be useful.
FEMA Response: FEMA appreciates this suggestion. FEMA has engaged
with the U.S. Army Corps of Engineers (USACE), the Bureau of
Reclamation (BuRec), the Tennessee Valley Authority (TVA),\275\ and the
National Resources Conservation Service (NRCS), and none of the
agencies had relevant data or studies in relation to facilities that
FEMA could use for this economic analysis. While such agencies--like
FEMA--have access to some information on making facilities more
resilient to flooding,\276\ it is still not possible to use this
information to generate estimates of the likely marginal cost of FFRMS
implementation across FEMA-funded facility projects. The variety of
projects, and unique characteristics of construction and repair of
these projects does not allow FEMA to make estimates that can be
broadly applied.
---------------------------------------------------------------------------
\275\ FEMA assumed the reference to DOE-TVA is to the Tennessee
Valley Authority although FEMA notes that TVA is not a component of
the Department of Energy.
\276\ For example, USACE has a suite of resources on its website
related to its implementation of CISA in its Civil Works Programs
which detail how project delivery teams must consider the effects of
sea level change when formulating, selecting, and evaluating project
alternatives, and how to characterize potential project
vulnerabilities to the effects of climate change on inland
hydroclimatology. See https://www.iwr.usace.army.mil/Missions/Flood-Risk-Management/Flood-Risk-Management-Program/About-the-Program/Policy-and-Guidance/Federal-Flood-Risk-Management-Standard/.
However, this information did not include relevant data that FEMA
could use in its economic analysis related to the costs of
implementation for facilities.
---------------------------------------------------------------------------
Comment: A commenter stated that the RIA is subject to the
Principles and Requirements for Federal Investments in Water Resources
March 2013. The commenter stated the RIA was inconsistent with the
requirements of that document and supporting PR&G. Specifically, the
commenter stated the RIA did not make any representation as to any
alternatives that maximize public benefits relative to costs and failed
to provide any representation of net public benefits. The commenter
also stated the preferred alternative was not clearly defined and the
commenter recommended FEMA disclose assumptions made and address
uncertainties associated with the composition of the preferred
alternatives consistent with the PR&G.
FEMA Response: As explained above, the PR&G does not generally
apply to this rulemaking; rather, the PR&G applies to actions
associated with water development projects. FEMA will apply the PR&G
only to those specific actions under part 9 that are actions associated
with a water development project.
Comment: One commenter noted that the baseline against which FEMA
assessed the costs and benefits of this rule produced a ``subjective
assessment of the proposed rule's costs and benefits.'' Specifically,
the commenter stated that because FEMA said it was unable to conduct an
analysis of the rule's effects separate from the effects of FEMA's
recently implemented partial interim policies for Public Assistance
(PA) and Hazard Mitigation Assistance (HMA) that the pre-guidance
baseline it used was a ``less-representative'' analysis of the rule's
costs and benefits.
FEMA Response: FEMA conducted its analysis under the pre-guidance
baseline that considered the holistic effects of the partial interim
policies for PA and HMA, as well as the proposed rule. At the time the
Notice of Proposed Rulemaking (NPRM) RIA was conducted, these partial
implementation policies had been in place for less than 2 years, which
is an insufficient period to provide adequate data for analysis. These
policies were issued as temporary, partial implementation of the FFRMS
until FEMA could implement it through this rulemaking. FEMA conducted
the Regulatory Impact Analysis against a pre-statutory baseline to
capture the economic impacts of the FFRMS and more accurately measure
the impacts of the rule against the world without the interim PA and
HMA policies. Therefore, FEMA was unable to complete an in-depth
analysis of the impact of these interim policies. Accordingly, FEMA
used a pre-guidance baseline for this final rule to measure the impacts
of the rule against the world without the interim PA and HMA policies.
Comment: A commenter provided several clarification edits.
FEMA Response: FEMA thanks the commenter for these suggestions.
FEMA has added these clarifications to the RIA and updated the language
as suggested.
Comment: A commenter suggested rounding dollar figures to an
appropriate level of significance.
FEMA Response: FEMA appreciates this suggestion. FEMA adjusted the
figures in the analysis, where feasible and appropriate.
Comment: A commenter stated that for the CISA floodplain analysis,
the mid-point of +1' and +10' is +5.5' would round to 6'. They
recommend against characterizing the +5-ft CISA level as the mid-point.
FEMA Response: FEMA updated the RIA to clarify this was rounded
down to 5-ft.
Comment: A commenter recommended deleting the ``minimum, moderate,
and maximum'' for the SLR qualifiers throughout the document as the
reader could come to a misunderstanding that the totality of the range
for SLR rise is encompassed by the 8'' and 59'' figures.
[[Page 57009]]
FEMA Response: FEMA removed the terms minimum, moderate and maximum
from 8-inch, 36-inch, and 59-inch, respectively as suggested.
Comment: A commenter stated that a footnote in the Executive
Summary of the RIA could be misleading, as it stated that ``the United
States has suffered more than $1.7 trillion in flood-related damages
over an approximately 40-year period.'' The commenter noted that FEMA
included tropical cyclones as a flood-related damage and stated that
tropical cyclones entailed substantial wind making the $1.7 trillion
figure potentially misleading.
FEMA Response: FEMA clarified within the footnote that severe
storms can include wind-related damages, but the data does not separate
these damages out.
Comment: A commenter sought clarification on the use of ``Federal
Investments,'' stating that FEMA's use of the term might encompass
actions taken by other agencies such as water resource agencies.
FEMA Response: FEMA's rule only applies to projects it funds under
its grant programs. All other Federal agencies will implement the FFRMS
using their own processes and procedures. FEMA made clarifications in
the RIA to clarify use of the term ``federal investments.''
Comment: A commenter suggested editorial changes to refer to
``9.11'' as 44 CFR 9.11 as it was unclear when it is standing alone.
FEMA Response: FEMA appreciates this clarification. FEMA made this
change to 44 CFR 9.11.
Comment: A commenter suggested editorial changes to Table ES-14.
FEMA Response: FEMA appreciates this suggestion. FEMA edited the
RIA to reflect the commenter's requested changes.
Comment: A commenter corrected miscited footnotes.
FEMA Response: FEMA appreciates this suggestion. FEMA updated the
footnotes as suggested by the commenter.
Comment: A commenter suggested removing page reference within a
footnote as the footnote did not address avoided loss as stated in the
RIA.
FEMA Response: FEMA typically includes a page number so that the
readers can easily find the referenced source. FEMA updated the page
citation to properly reflect the location in the document.
Comment: A commenter suggested reconciliation of different
statements in the text in the bottom paragraph on page 17, Table ES-1,
and the text in the second paragraph in the RIA regarding how FEMA
analyzed the impact of each FFRMS expansion option as they are not
consistent with one another.
FEMA Response: FEMA appreciates this suggestion. FEMA edited the
document for consistency as suggested.
Comment: A commenter recommended re-titling Table ES-1 within the
RIA since it was not consistent with its introductory text in the last
paragraph on page 17.
FEMA Response: FEMA appreciates this suggestion. FEMA clarified the
title to table ES-1.
Comment: A commenter recommended editorial changes to Table ES-3
within the RIA so that the rows were properly aligned.
FEMA Response: FEMA appreciates this suggestion. FEMA corrected
this for the final rule.
Comment: A commenter recommended making editorial changes to the
RIA and to use quotations around statements that were verbatim from an
outside source.
FEMA Response: FEMA appreciates this suggestion. FEMA has gone
through the document and made the recommended changes.
Comment: A commenter recommended FEMA edit a statement of present
values, as present values are discounted by definition.
FEMA Response: FEMA appreciates this suggestion. FEMA removed the
term undiscounted from the benefit statements for clarity purposes.
Comment: A commenter recommended FEMA edit the RIA to avoid
confusion between discount rates and annual increases, providing an
example within the Executive Summary of the RIA.
FEMA Response: FEMA clarified the wording to prevent confusion on
the discount rates with annual increases.
Comment: A commenter pointed out inconsistency with the annualized
CISA costs within Table ES-13 and ES-14.
FEMA Response: FEMA updated all of the costs for the final rule and
reconciled this discrepancy.
Comment: A commenter requested FEMA delete an introductory sentence
in RIA section 6.14 that states flooding is ``by far the most common
natural disaster type in the United States.'' \277\ The commenter noted
that NOAA distinguishes flooding as a category separate from tropical
cyclones and storms which were both identified as having greater
frequencies than flooding. The commenter also opined that storm damages
are more properly associated with wind damage than with flooding.
---------------------------------------------------------------------------
\277\ FEMA-2023-0026-0018.
---------------------------------------------------------------------------
FEMA Response: FEMA appreciates the commenter's concerns and
deleted the sentence. Categorizing and calculating damage for different
disaster types can be quite complex; however, the methodology set forth
in the benefits section of the RIA is not dependent on resolution of
these complexities. Further, it is not necessary to prove that flooding
is the most common natural disaster type to state, as FEMA has in
section 6.14 of the RIA, that there are benefits to mitigating against
flooding.
Comment: A commenter requested rationale on why FEMA selected a 10-
year period for the RIA. The commenter also recommended FEMA change
language in the RIA to state that the agency limited the dollar-
valuation to the projects impacted in the first 10 years following the
rule's publication or expand the analysis to reflect economic concerns
over the expected life of the regulation. The commenter stated
additional discussion was needed regarding future effects and provided
a number of questions around those effects including whether
development within the floodplain would be progressively more likely to
be diverted outside the floodplain over time and whether the costs of
elevating or floodproofing would be expected to decline over time in
real terms as contractors and architects adapt to the new requirements.
The commenter asked whether it would be most appropriate to simply
state that the first 10 years of the analysis was viewed as being a
sample for the entire period or if the use of the maximum 8.5 RCP and
the 59-inch SLR indicated a 50-year life for the regulation was
suspected and that a shorter period of analysis was in order.
FEMA Response: FEMA appreciates the commenter's concerns regarding
the analysis period. FEMA has clarified language throughout the RIA to
further address the commenter's concerns. FEMA conducted the regulatory
analysis using its standard 10 years of historical data and, based on
this data, estimated the number of affected projects for the first 10
years after implementation of the rule. Circular A-4 directs that the
timeframe for an agency's analysis ``should cover a period long enough
to encompass all the important benefits and costs likely to result from
the rule.'' FEMA believes estimating the number of affected projects
over the initial 10 years and benefits over their 50-year useful life
captures all the important benefits (protection from flooding) and
costs (construction costs) likely to result from
[[Page 57010]]
the rule because FEMA does not expect a change in the types of costs or
benefits after this time period. FEMA acknowledges that flooding is
widely expected to increase in frequency and severity in the
future,\278\ so estimating the number of affected projects and their
associated benefits farther into the future would become increasingly
inaccurate as conditions change and the expected frequency and severity
of disasters increases. However, due to increased flooding frequency
and severity, FEMA believes that the benefits of increasing the
protection of structures in the future is expected to continue to
justify the cost of doing so beyond the 10-year timeframe that FEMA
used for this analysis.
---------------------------------------------------------------------------
\278\ The Third National Climate Assessment. https://nca2014.globalchange.gov, (last accessed Apr. 29, 2024).
---------------------------------------------------------------------------
Regarding other future effects such as diversion of projects
outside of the floodplain, FEMA notes that this is discussed within the
RIA in the Qualitative Discussion of Additional Potential Costs
section. The effect of the rule could be to divert some projects out of
the floodplain. However, it is not possible to state with a reasonable
degree of certainty how many projects this will affect, or the costs or
benefits associated with diverting these projects out of the
floodplain, as FEMA does not currently track this information. The
costs and benefits, and the decision to build inside or outside of the
floodplain, will be dependent on the specific location or
characteristics of a property or project.
Comment: A commenter stated that they could not find the ``2022
Benefits Analysis of Increased Freeboard for Public and Nonresidential
Buildings in Riverine and Coastal Floodplains'' file at regulations.gov
under docket ID FEMA-2023-0026.
FEMA Response: FEMA verified that all of the supporting documents
were listed on the site during the comment period, including the report
referenced.\279\
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\279\ FEMA, A Benefits Analysis of Increased Freeboard for
Public and Nonresidential Buildings in Riverine and Coastal
Floodplains, July 2002, available at: https://www.regulations.gov/document/FEMA-2023-0026-0003.
---------------------------------------------------------------------------
Comment: A commenter pointed out confusion with the footnote ``25
FEMA's project level data for IA, PA, and HMA delineate whether
projects are in the Special Flood Hazard Area (1 percent annual chance
floodplain) but do not show whether they are in the 0.2 percent chance
floodplain'' because FIRMs characteristically identify both the 1
percent annual chance floodplain and the 0.2 percent annual chance
floodplain.
FEMA Response: FEMA agrees that the 0.2 percent annual chance
floodplain, in locations where that floodplain is mapped, is available
on FIRMs. However, the data availability issue noted in the footnote is
that FEMA's project databases (e.g., IA, PA, HMA) do not include FIRM
data, so FEMA is not able to accurately determine whether a project is
in the 0.2 percent chance floodplain. FEMA's project level data only
indicate whether a project is located in the SFHA in most cases.
Project databases do not contain accurate geolocation data, and
addresses on file are for the recipient's address, which may not be the
project location, so FEMA was unable to locate projects on a FIRM, or
determine which flood zone a project was located in.
Comment: A commenter stated that FEMA's preferred policy approach
is not clearly defined, as it consists of an unidentified mixture of
CISA, FVA, and 0.2PFA, which requires the reader to speculate and make
assumptions about the composition in order to draw conclusions. The
commenter suggested FEMA discuss the uncertainty associated with the
composition of the FFRMS approaches that comprise FEMA's preferred
policy approach.
FEMA Response: FEMA selected CISA as the preferred policy approach,
since FEMA believes it has the potential to be the best and most well-
informed approach to building resilience in an equitable manner and
ensuring a reduction in disaster suffering. CISA is designed to meet
current and future estimates of flood risks unique to the location and
thus provide the best overall resilience, cost effectiveness, and
equity. FEMA added clarification on what the primary approach is
earlier in the RIA.
FEMA acknowledges that its policy--which requires use of FVA and
0.2PFA when CISA data are not available and actionable--will result in
an unknown mixture of projects using CISA, FVA, and 0.2PFA. OMB
Circular A-4 suggests using central estimates ``where such information
exists'' but authorizes the use of upper and lower bounds where it does
not, together with any available information that might help in
qualitatively determining which scenario is most likely to occur. FEMA
conducted its analysis to consist of a range of potential costs,
benefits, and transfers. FEMA analyzed the impact of the FVA, 0.2PFA,
and CISA for each of the programs, PA, IA, and HMA, as if each approach
were the only FFRMS expansion option. FEMA discussed that because the
composition of applied FFRMS approaches will continue to change with
the addition of CISA data over time, there is significant uncertainty
in any such estimates. Accordingly, FEMA estimated the costs of the
requirements for each of the approaches separately to create upper and
lower bounds estimates of the possible outcomes. In addition, as
discussed above, FEMA presents CISA as the primary estimate for the
impacts of the rule because it is FEMA's preferred FFRMS approach and
therefore, over time, it will become the most widely used FFRMS
approach.
Comment: A commenter disagreed with FEMA's statement about how
``RCP 4.5 and 8.5 are widely accepted scenarios that represent medium
and low efforts to curb emissions, respectively.'' They suggested
better explaining the definitions of RCP 4.5 and 8.5 based on the EPA's
language about RCPs.
FEMA Response: FEMA appreciates this suggestion. FEMA updated the
use of RCP 4.5 and 8.5 and the definitions for the Final Rule RIA.
Comment: A commenter suggested explaining the terms ``low
estimate'' and ``high estimate'' earlier in the RIA. They also
suggested that instead of using a range, FEMA should present a best
estimate for these values and discuss the uncertainty associated with
such values in the Risk and Uncertainty section of the document. They
also requested a sensitivity analysis showing how the decision might be
affected if the values used proved to be unduly high or low. The
commenter suggested that because of the number of variables
contributing to the ranges (e.g., discount rate, high and low), the
presentation of information would be clearer if single, best-estimate,
rounded values were used in the analysis.
FEMA Response: OMB Circular A-4 suggests using central estimates
``where such information exists'' but authorizes the use of upper and
lower bounds where it does not. In the instances where FEMA uses a
range, it is because FEMA does not have adequate justification for a
single best estimate. FEMA conducted its analysis to consist of a range
of potential costs, benefits, and transfers. For example, as discussed
above, FEMA analyzed the impact of the FVA, 0.2PFA, and CISA for each
of the programs, PA, IA, and HMA, as if each approach were the only
FFRMS expansion option because it is unknown exactly how many projects
will be subject to the FVA, 0.2PFA, or CISA requirements under the
final rule, and how use of CISA will change as more data become
available over time. Because FEMA analyzed each approach
[[Page 57011]]
separately, it is unable to provide a primary estimate, and instead had
to rely on a range of possible impacts. In addition, FEMA does not have
data to estimate whether certain non-residential new construction
projects will elect to floodproof or elevate and therefore also used a
range for the cost of meeting the rule's increased construction
standards.
FEMA appreciates that the presentation of the range of impacts may
not be as clear as a single point estimate. FEMA presents this
information in tables, to help more clearly convey the information, and
has also reviewed the language and streamlined for increased clarity.
Comment: A commenter provided editorial suggestions to the
statement: ``CISA is the only approach that ensures projects are
designed to meet current and future flood risks unique to the location
and thus provides the best overall resilience, cost effectiveness, and
equity.'' The commenter suggested the claim that CISA makes such an
assurance is an overstatement of the risk reduction from the CISA.
FEMA Response: FEMA appreciates this suggestion. FEMA accepted this
change in part: ``CISA is designed to meet current and future estimates
of flood risks unique to the location and thus provide the best overall
resilience, cost effectiveness, and equity.''
Comment: A commenter provided suggested edits to FEMA's statement
regarding whether the action was a significant regulatory action under
Executive Order 12866, as amended by Executive Order 14094.
FEMA Response: This is standard language that FEMA uses in RIAs.
FEMA provided footnotes to this statement clarifying the relevant
sections of Executive Order 12866.
Comment: A commenter recommended presenting the CISA-only analysis
as an alternative or explaining why it was found to be unreasonable and
including it in the section of the document on alternatives considered
but not selected. If FEMA found a CISA-alone approach to be
unreasonable, the commenter recommended changing all blanket statements
in the document that describe CISA as the best approach for achieving
overall resilience, cost effectiveness, and equity.
FEMA Response: The CISA is one of three approaches available under
the FFRMS, and FEMA's preferred approach. However, because the CISA
data is not available nationwide, a CISA-only approach is not currently
feasible, and other FFRMS approaches are needed for areas where the
CISA is not available. FEMA's implementation of the FFRMS allows for
the use of the most appropriate approach depending on the data
available for a given project. Although FEMA estimated the impacts of
the CISA for affected programs as if it were the only FFRMS expansion
option, just as it did for the FVA and 0.2PFA, FEMA was unable to use
actual CISA estimates, as they are not yet available nation-wide and
instead used an estimate. As the CISA data becomes more available, FEMA
expects it to be the more widely-adopted. FEMA made clarifying edits to
statements describing the CISA as the preferred approach.
Comment: A commenter encouraged FEMA to consider implications of
FEMA's FFRMS policy on benefit-cost analyses for flood mitigation
assistance grants.
FEMA Response: FEMA appreciates the commenter's concerns. FEMA's
FFRMS policy will generally not change BCA requirements for FEMA
programs. Certain Hazard Mitigation Assistance programs and Public
Assistance projects are subject to a Benefit-Cost Analysis prior to
approval, where the mitigation action must be determined to be cost-
beneficial using FEMA's BCA tool. For FEMA's FMA program, the costs of
additional elevation above the base flood elevation will be considered
as part of the BCA. Currently, the BCA tool includes pre-calculated
benefits that streamline the cost-effectiveness determination for
structure elevation projects are limited to structures where some part
of the structure is within the 1 percent annual chance floodplain. For
an elevation project where the entire structure footprint is outside
the 1 percent annual chance floodplain, FEMA will also require a BCA to
show cost-effectiveness. For FEMA's PA program, cost-effectiveness
requirements apply only to Hazard Mitigation measures on projects to
restore disaster damaged structures and facilities. FEMA notes that any
increased costs are generally eligible for funding under FEMA's
assistance programs subject to cost share requirements. FEMA
acknowledges that FFRMS requirements may impact individual BCA results,
with the potential to cause some projects to pass that otherwise
wouldn't, and vice-versa, but is not able to predict this for future
individual projects because project-level analysis is not generalizable
nationwide. For structures, FEMA estimates the marginal cost of
implementing FFRMS to be relatively low, ranging from 0.32 percent (1
foot of elevation for new construction) to 8.07 percent (4 feet of dry
floodproofing for a building retrofit) of total project cost, depending
on the elevation required and the type of project. Given available
evidence showing relatively small costs and even positive increases in
Benefit-Cost Ratio in connection with additional elevation for studied
residential buildings, FEMA does not expect FFRMS requirements to
adversely affect the BCR for a large volume of
projects.280 281
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\280\ National Institute of Building Sciences. Multi-Hazard
Mitigation Council. ``Natural Hazard Mitigation Saves.'' 2019.
https://www.nibs.org/files/pdfs/NIBS_MMC_MitigationSaves_2019.pdf
(last accessed Apr. 29, 2024). See, for example, Table 5: BCRs for
various heights above BFE for new coastal V-zone buildings and Table
2-2: Summary BCR results for sampled counties susceptible to
riverine flooding.
\281\ A Benefits Analysis of Increased Freeboard for Public and
Nonresidential Buildings in Riverine and Coastal Floodplains. FEMA.
Draft, July 2022, pg. 16, available at: https://www.regulations.gov/document/FEMA-2023-0026-0003.
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Comment: A commenter questioned the baseline data used for the
floodplain expansion analysis in Appendix A. The commenter stated that
FEMA should have compared the 1' freeboard measured to the ``Effective/
Preliminary 1 percent annual chance floodplain'' instead of the
``replotted'' 1 percent annual chance floodplain.
FEMA Response: The goal of the floodplain expansion analysis
performed by FEMA is to estimate the number of additional projects that
would be affected by a requirement for a higher vertical elevation, and
thus horizontal expansion, of the floodplain. When FEMA calculated the
FFRMS floodplains for different freeboard values, FEMA used the latest
high-accuracy ground elevation data. The original 1 percent annual
chance floodplain boundaries were likely calculated using older ground
elevation data. For consistency, FEMA compared the FFRMS freeboard-
based floodplains to a 1 percent annual chance floodplain redrawn using
the new ground elevation data. This approach provides the most
consistent comparison of the difference in area between the 1 percent
annual chance floodplain and the FFRMS floodplain (i.e., specific
levels of freeboard added to the 1 percent annual chance flood
elevations). This approach does not account for differences between the
redrawn 1 percent annual chance floodplain boundaries and the original
1 percent annual chance floodplain boundaries. Since the goal is to
produce a statistical estimate of the impact of freeboard, FEMA assumed
the differences between the original 1 percent annual chance boundaries
and the redrawn 1 percent annual chance boundaries would be largely
random and not essential to the goal of the estimate.
Comment: A commenter assessed that FEMA's statements that a study
upon
[[Page 57012]]
which it relied considered various levels of SLR ``by 2100'' is
problematic, as the study does not extend as far as the year 2100, and
it actually only extends some 60 years into the future. The commenter
sought clarification.
FEMA Response: FEMA would like to distinguish between the coastal
and riverine flood studies used within the 2022 Report.\282\ The
riverine analysis considered two climate change scenarios to evaluate
the amount of increase or decrease in riverine flood elevations over
the next 50 years. These evaluated two widely accepted scenarios of the
Representative Concentration Pathways (RCP) 4.5 and 8.5, which
represent medium and low efforts to curb emissions.
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\282\ A Benefits Analysis of Increased Freeboard for Public and
Nonresidential Buildings in Riverine and Coastal Floodplains. FEMA.
Draft, July 2022, pg. 16, available at: https://www.regulations.gov/document/FEMA-2023-0026-0003.
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The coastal study within the 2022 Report considered 12 different
locations along a hypothetical coastal transect to evaluate the impact
of various wave conditions in Zone A (areas with wave heights less than
1.5 feet) subject to coastal storm surge. The sea level rise conditions
replicated a 2016 evaluation considered 8-inch, 20-inch, 39-inch, and
59-inch sea level rise by 2100.\283\ The sea level rise assumptions are
explained in the 2022 report. Specifically, when evaluating the
increases in flood depths, the rise scenarios were considered in 10-
year increments from 2022 to 2100, but the evaluation of the benefits
is limited to the 50-year useful life of a project (i.e., from 2022-
2072). The assumed increase in flood depths is shown in Table 1 of the
report in 10-year increments.
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\283\ FEMA, 2016 Evaluation of the Benefits of Freeboard for
Public and Nonresidential Buildings in Coastal Areas. Available at:
https://www.regulations.gov/document/FEMA-2015-0006-0379.
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Consistent with FEMA's BCA guidance,\284\ FEMA selected the 50-year
project useful life which is the timeframe evaluated to determine the
cost-effectiveness for a public building and is consistent with the
assumption in the FEMA BCA Toolkit. FEMA's analysis focuses on the
costs, benefits, and transfer payments (i.e., impacts on FEMA grants),
that will result over a 50-year period from the application of the
requirements of the final rule to those projects, for a total period of
analysis spanning 60 years. For example, if a structure is built in
Year 10, the analysis covers 50 years of costs, benefits, and transfers
for that structure starting in Year 10. However, if a structure is
built in Year 11, that is outside of the first 10 years, and so the
analysis does not consider the costs, benefits, or transfers of the
FFRMS requirements on that structure.\285\
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\284\ BCA Reference Guide, Appendix D. Project Useful Life
Summary (June 2009). Available at: https://www.fema.gov/sites/default/files/2020-04/fema_bca_reference-guide.pdf (last accessed
May 15, 2024).
\285\ If FEMA limited the analysis to only 10 years of impacts,
it would consider all of the costs and transfers but only a small
portion of the benefits from additional protection from flood events
because the life of the structure is more than 10 years. After year
10, the final rule would continue to impact FEMA projects funding
new construction, substantial improvements or repairs to fix
substantial damage. To estimate the future number of impacted
structures, FEMA used the average number of projects that would have
been affected by this rule had it been in place over the past 10-
year period, assuming the next 10 years would look largely like the
past 10 years. FEMA chose to limit the analysis to 10 years of
affected structures because estimating the number of affected
projects and their associated benefits further into the future--that
is, further from historical disaster data would become less accurate
as conditions change and the expected frequency and severity of
major disasters increases. Accordingly, FEMA's analysis focuses on
the 50-year impacts of the rule on projects that take place in the
initial 10-year period, for a total period of analysis spanning 60
years.
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III. Discussion of Changes
This rule makes changes to the NPRM in response to comments
received, as well as minor technical edits. Specifically, in Sec.
9.7(c)(3), FEMA made a clarifying edit by adding the words
``information from'' before the colon, such that the sentence reads
``In obtaining the best available information, FEMA may consider other
FEMA information as well as other available information, such as
information from:''
FEMA also edited Sec. 9.7(c)(3)(iv) to include the National Park
Service as an agency within the Department of the Interior where FEMA
obtains information. FEMA also edited Sec. 9.7(c)(3)(ix) to include
Indian Tribal governments; as revised, this paragraph now reads,
``Agencies of State, Regional, and Indian Tribal governments.'' While
FEMA always considered Tribal information, the edits further confirm
the agency's commitment to doing so. The changes made to Sec.
9.7(c)(3) clarify that FEMA considers certain relevant and appropriate
data in making the floodplain determination under part.
FEMA is also making minor technical edits in Sec. 9.7(c)(1)(i)(C)
and Sec. 9.11(d)(3)(ii). In Sec. 9.7(c)(1)(i)(C), FEMA is adding
appropriate hyphenation to state ``0.2-Percent-Annual-Chance Flood
Approach (0.2PFA): The 0.2 percent annual chance flood'' for
consistency with the Revised Guidelines. In Sec. 9.11(d)(3)(ii), FEMA
is correcting a grammatical error from ``water tight'' to
``watertight.''
FEMA's FFRMS policy is also being finalized with the publication of
this rule and will be effective with the rule's implementation. FEMA is
making minor clarifying edits to the FFRMS policy consistent with
commenters' suggestions by further clarifying the use of the 0.2PFA in
coastal areas and making other technical edits to the document for
readability. Specifically, FEMA is making technical formatting and
grammatical edits on pages 1, 2, 3, 4, 7, 8, and 13. FEMA is adding
clarifying language in section C. In section C.2, FEMA is eliminating
the reference to wave action in coastal areas at the end of the
paragraph. In section C.3.a, FEMA is adding the following clarifying
text in footnote 14: ``In coastal areas Flood Insurance Rate Maps
(FIRMs) and Flood Insurance Studies (FISs) provide 1 percent AC flood
elevations that account for the effects of wave action. However, 0.2
percent AC flood elevations are generally stillwater elevations that do
not account for the effects of wave action. In coastal areas, if the
0.2 percent AC flood elevation does not account for the effects of wave
action, the FVA flood elevation must be used.'' FEMA is further
eliminating section C.3.c consistent with these edits. FEMA also edited
Figure 1 in the FFRMS policy to clarify ``AC'' means ``annual chance''
at a commenter's request and reflect the clarifications to C.3
referenced above. Additionally, FEMA updated section G.2 to reflect
``Flood Risk Mitigation for Facilities.'' FEMA removed the term ``non-
structure'' in that section because commenters expressed confusion
about the term.
IV. Regulatory Analyses
A. Executive Order 12866, Regulatory Planning and Review, as Amended,
and Executive Order 13563, Improving Regulation and Regulatory Review
Executive Orders 12866 (Regulatory Planning and Review), as amended
by Executive Order 14094 (Modernizing Regulatory Review), and 13563
(Improving Regulation and Regulatory Review), directs 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 costs
and benefits, reducing costs, harmonizing rules, and promoting
flexibility. The Office of Management and Budget (OMB) has designated
this
[[Page 57013]]
rule a ``significant regulatory action'' as defined under section 3(f)
of Executive Order 12866, as amended by Executive Order 14094, but it
is not significant under section 3(f)(1) because its annual effects on
the economy do not exceed $200 million in any year of the analysis.
Accordingly, OMB has reviewed this rule.
This analysis provides an assessment of the potential costs,
benefits, and transfer payments from the Updates to Floodplain
Management and Protection of Wetlands Regulations to Implement the
Federal Flood Risk Management Standard (FFRMS) Final Rule. For further
detail please refer to the Regulatory Impact Analysis (RIA) in the
docket accompanying this rule.
FEMA is amending 44 CFR part 9 Floodplain Management and Protection
of Wetlands and issuing a supplementary policy \286\ to implement the
FFRMS and update the agency's 8-step decision-making process used to
determine whether an action would be located within or affect a
floodplain, and if so, whether and how to continue with, or modify, the
action.
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\286\ The final rule and policy contain content that is
interrelated but not identical. For purposes of this analysis, FEMA
considers both documents as a single proposal.
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The FFRMS is a flood resilience standard that is required for
Federally funded projects and provides a flexible framework to increase
resilience against flooding and to help preserve the natural values of
floodplains and wetlands. A floodplain is any land area that is subject
to flooding and refers to geographic features with undefined
boundaries. FEMA will incorporate the FFRMS into its existing processes
to ensure that the floodplain for an action subject to the FFRMS is
expanded from the current 1 percent annual chance (100-year) floodplain
based on the one percent annual chance elevation \287\ to a higher
vertical elevation and corresponding horizontal floodplain; and that,
where practicable, natural systems, ecosystem processes, and nature-
based approaches will be considered when developing alternatives to
locating Federal actions in the floodplain.
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\287\ The one percent annual chance elevation refers to the
elevation to which floodwater is anticipated to rise during the 1
percent annual chance flood (also known as the base or 100-year
flood). Under Executive Order 11988, non-critical actions must be
elevated or floodproofed to at least the one percent annual chance
elevation (or base flood elevation). Critical actions must be
elevated or floodproofed to at least the 0.2 percent annual chance
flood (or 500-year) elevation.
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Under current FEMA regulations set out in 44 CFR part 9, the
floodplain is defined as the 100-year floodplain (1 percent annual
chance) for non-critical actions and the 500-year floodplain (0.2
percent annual chance) for critical actions. New construction or
substantial improvement of structures located in a floodplain must be
elevated to or above the 1 percent annual chance (100-year) flood level
or base flood elevation (BFE). For critical actions, the new
construction or substantial improvement of structures must be elevated
to or above the 0.2 percent annual chance (500-year) flood level. Non-
residential structures may be appropriately floodproofed rather than
elevated to meet the applicable flood level.
This rule will implement the supplemental FFRMS policy in the
expanded floodplain and codify implementation of the supplemental FFRMS
policy in the current floodplain. FEMA has interim policies for PA and
HMA that partially implement FFRMS, as discussed in further detail
below. Depending on the program, these programs apply the supplemental
FFRMS policy either to the base floodplain, or to both the 100-year
(base floodplain) and 500-year floodplain (for critical actions).
Following guidance in OMB Circular A-4, FEMA assessed each impact of
this rule against a pre-guidance baseline. The pre-guidance baseline is
an assessment against what the world would be like if the relevant
guidance (i.e., the partial interim policies for PA and HMA) were not
implemented.
At the time the Notice of Proposed Rulemaking (NPRM) RIA was
conducted, these partial implementation policies had been in place for
less than 2 years. These policies were issued as temporary, partial
implementation of the FFRMS until FEMA could implement it through this
rulemaking. FEMA conducted this Regulatory Impact Analysis against a
pre-statutory baseline to capture the economic impacts of the FFRMS and
more accurately to measure the impacts of the rule against the world
without the interim PA and HMA policies.
Under the final rule, the Climate-Informed Science Approach (CISA)
would result in a flood elevation and corresponding horizontal
expansion floodplain determination utilizing the best-available,
actionable hydrologic and hydraulic data and methods that integrate
current and future changes in flooding based on climate science. The
CISA is FEMA's preferred policy approach, as FEMA believes it has the
potential to be the best and most well-informed approach to building
resilience in an equitable manner and ensuring a reduction in disaster
suffering. CISA is designed to meet current and future estimates of
flood risks unique to the location and thus provide the best overall
resilience, cost effectiveness, and equity. The FFRMS requires FEMA to
consider the criticality of the action involved, the availability and
actionability of data, and equity concerns, as further explained in the
supplementary policy. As actionable climate data are not currently
available for all locations, FEMA will utilize the Freeboard Value
Approach (FVA) and 0.2-Percent-Annual-Chance Flood Approach (0.2PFA)
alternatives in the absence of actionable CISA data. Specifically:
For critical actions: \288\ FEMA will use the higher of
the +3-foot FVA floodplain or the 0.2PFA floodplain.\289\ Where the
0.2PFA data is not available, the +3-foot FVA will be utilized.
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\288\ A critical action is any activity for which even a slight
chance of flooding would be too great. A non-critical action is any
activity not considered a critical action.
\289\ For all projects in coastal areas, if the 0.2 percent
annual chance flood elevations do not account for the effects of
wave action, the appropriate FVA must be used to determine the FFRMS
floodplain.
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For non-critical actions: FEMA will use the lower of the
+2-foot FVA or 0.2PFA.\290\
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\290\ While application of the 0.2PFA may provide a more
consistent reduction of flood risk as it is probability based, the
relationship to the FVA varies depending on topography (i.e., in
some instances the 0.2PFA may result in a lower flood elevation than
the FVA). Application of only the 0.2PFA without a comparison to the
FVA may result in building to a higher resilience standard than is
necessary.
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The floodplain established by the FVA is the equivalent of the 1
percent annual chance floodplain (also known as the 100-year flood),
plus either 2 or 3 feet of vertical elevation, as applicable based on
criticality, and a corresponding increase in the horizontal extent of
the floodplain. The increased horizontal extent will not be the same in
every case. When the same vertical increase is applied in multiple
actions subject to the FFRMS in different areas, the amount of the
increase in the horizontal extent of the respective floodplains will
depend upon the topography of the area surrounding the proposed
location of the action.
The term 0.2PFA refers to the elevation to which floodwater is
anticipated to rise during the 0.2 percent annual chance flood (also
known as the 500-year flood) and the associated floodplain. The 0.2PFA
generally covers a larger area than the 1 percent annual chance
floodplain.
[[Page 57014]]
Projects that are located near a Special Flood Hazard Area
(SFHA),\291\ but not in it, may be in the FFRMS floodplain. At the time
the NPRM was published, there were no FEMA products depicting the
boundary of the FFRMS floodplain. For this reason, FEMA and its
interagency partners have developed and are continuing to develop
various tools, including the FFRMS Floodplain Determination Job Aid
published on FEMA's website and in the public docket with this
rulemaking and a web-based decision support tool, Federal Flood
Standard Support Tool (FFSST), that will provide the agency with guides
to determine which FFRMS floodplain approach has available and
actionable data, in map form, thus should be used for each project. The
FFRMS Job Aid helps Federal agencies and their non-federal partners
(including potential Federal financial aid recipients) conduct a
screening to determine if a proposed Federally funded action will be
located within an FFRMS floodplain, based on any of the three
approaches in accordance with Sec. 2(a)(1) of Executive Order 11988, as
amended. FEMA will leverage the FFRMS Job Aid for determining the FFRMS
floodplain when the final rule is implemented. FEMA will continue to
collaborate across the Federal government to continue to develop the
FFSST to facilitate the implementation of the CISA and the FFRMS.
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\291\ The Special Flood Hazard Area is the area designated on
FEMA regulatory mapping products depicting a 1 percent annual chance
floodplain.
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FEMA developed a flexible approach to implementing the FFRMS to
maximize the net benefits--quantified and unquantified--of the rule.
Floods are expected to be more frequent and more severe over the next
century due to the projected effects of changing
conditions.292 293 The ocean has warmed, polar ice has
melted, and porous landmasses have subsided.\294\ The global sea level
has risen by about 8 inches since reliable record keeping began in
1880.\295\ It is projected to rise upwards of 1 to 4 feet by 2100,
affecting many coastal areas.296 297 298 Floods are costly
natural disasters; between 1980 and 2022, the United States suffered
more than $2.0 trillion (in 2022 dollars) in flood-related
damages.\299\ This final rule will help protect FEMA funded investments
from future floods and will help minimize harm in floodplains by
changing the standards used to determine future risk for FEMA-funded
new construction and substantial improvement, and/or to address
substantial damage to Federally funded projects.
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\292\ National Oceanic and Atmospheric Administration. U.S.
Department of Commerce. ``Climate change impacts.'' https://www.noaa.gov/education/resource-collections/climate/climate-change-impacts. Last accessed February 15, 2022.
\293\ U.S. Global Change Research Program (2014). Climate Change
Impacts in the United States: The Third National Climate Assessment.
Available at: https://repository.library.noaa.gov/view/noaa/19485.
Page 20. Last accessed: April 16, 2024.
\294\ Ibid [page 21].
\295\ Ibid [page 21].
\296\ Global Change Research Program (2014). Climate Change
Impacts in the United States: The Third National Climate Assessment.
Available at: https://repository.library.noaa.gov/view/noaa/19485.
Page 20. Last accessed: April 16, 2024.
\297\ Environmental Protection Agency (EPA). Supplementary
Material for the Regulatory Impact Analysis for the Supplemental
Proposed Rulemaking. ``Standards of Performance for New,
Reconstructed, and Modified Sources and Emissions Guidelines for
Existing Sources: Oil and Natural Gas Sector Climate Review.'' Page
36. https://www.epa.gov/system/files/documents/2022-11/epa_scghg_report_draft_0.pdf. Last accessed: September 14, 2023.
\298\ The EPA uses the Framework for Assessing Changes To Sea-
level (FACTS) and Building Blocks for Relevant Ice and Climate
Knowledge (BRICK) sea-level rise models for their projections.
\299\ Climate.gov. ``U.S. billion-dollar weather and climate
disasters.'' https://www.ncei.noaa.gov/access/billions/summary-stats/US/1980-2022. Last accessed October 31, 2023. Flood related
damages are from flooding, severe storms, and tropical cyclones.
Data is CPI adjusted. Severe storms can include wind-related
damages, but the source does not separate data out by type of
damage.
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The requirements of this rule will apply to grants under FEMA
programs such as Individual Assistance (IA), Public Assistance (PA),
and Hazard Mitigation Assistance (HMA), as well as grants processed by
FEMA's Grants Programs Directorate (GPD) (involving grants for
preparedness activities), for projects funding new construction,
substantial improvement, or repair of substantial damage. The primary
focus of this analysis is to estimate the costs and benefits resulting
from a higher vertical elevation and associated horizontal expansion of
the floodplain for specific projects paid for with Federal funds. The
expected impacts of this final rule primarily result from the cost of
the increase in elevation or floodproofing requirements of structures
in the FFRMS floodplain. The majority of these costs will be funded by
FEMA through several grant programs. For the grant programs that have a
cost-share requirement, FEMA grant recipients typically will bear about
25 percent of the elevation and floodproofing project costs.
Additionally, FEMA expects to incur costs for administration of the
FFRMS requirements, including training FEMA personnel.
To estimate the number of projects that will be subject to the
requirements of this rule, FEMA used historical PA, IA, and HMA data.
First, FEMA estimated the number of past new construction, substantial
improvement, or repairs to substantial damage projects that are in the
existing floodplain. Next, FEMA relied upon data from samples of
floodplain expansion at varying levels of freeboard in inland and
coastal areas to estimate an average percentage expansion of the
floodplain under each of the three FFRMS approaches. FEMA then
multiplied the expansion percentages by the estimated number of
projects in the current floodplain to estimate the number of projects
that will be in the expanded floodplain under each of the FFRMS
approaches.
To estimate the cost of the FFRMS elevation requirements, FEMA used
reports from the National Flood Insurance Program (NFIP) to determine
the increased cost per square foot associated with elevation and
floodproofing. FEMA presents the costs as a range because of
uncertainty about whether new construction projects would choose to
floodproof or elevate.
Finally, to present the total impacts of the final rule, FEMA
analyzed the impact of the FVA, 0.2PFA, and CISA for each of the
programs, PA, IA, and HMA, as if each approach were the only FFRMS
expansion option. This is because it is unknown exactly how many
projects will be subject to the FVA, 0.2PFA, or CISA requirements under
the final rule, as it will continue to change with the addition of CISA
data over time. Accordingly, FEMA estimated the costs of the
requirements for each of the approaches separately. This allows FEMA to
create a range for each approach. FEMA is opting to use this
methodology because it allows for estimation of the highest and lowest
probable costs, transfers, and benefits associated with each of the
FFRMS expansion options for each of the programs.
FEMA limited its dollar-valuation to the projects impacted in the
first 10 years after the rule's effective date.\300\ FEMA's analysis
focuses on the costs, benefits, and transfer payments (i.e., impacts on
FEMA grants), that will result over a 50-year period \301\ from the
application of the requirements of the final rule to those projects,
for a total period of analysis spanning 60 years. For example, if a
structure is built in Year 10, the analysis covers 50 years of
[[Page 57015]]
costs, benefits, and transfers for that structure starting in Year 10.
However, if a structure is built in Year 11, that is outside of the
first 10 years and so the analysis does not consider the costs,
benefits, or transfers of the FFRMS requirements on that
structure.\302\ The costs and transfers occur in the first 10 years of
the 60-year period because that is when the initial investment to
elevate or floodproof those projects takes place. This is an upfront
cost that occurs when the project is constructed. However, the benefits
of the final rule are estimated over the 50-year useful life of the
affected structures.
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\300\ FEMA used an average of the number of affected projects
during the prior 10-year period to estimate the average annual
impacts of the future 10-year period.
\301\ The 50-year period is based on the 2022 Report, which
assumed 50-year useful life for public buildings. Therefore, FEMA
estimated such benefits over a 50-year period. Please see section
7.14.2 of the RIA for more information.
\302\ If FEMA limited the analysis to only 10 years of impacts,
it would consider all of the costs and transfers but only a small
portion of the benefits from additional protection from flood events
because the life of the structure is more than 10 years. After year
10, the final rule would continue to impact FEMA projects funding
new construction, substantial improvements or repairs to fix
substantial damage, but FEMA chose to limit the analysis to 10 years
of affected structures because it used 10 years of historical data,
and due to changing conditions, projecting impacts past 10 years
would become less accurate due to an expected increase in the
frequency and severity of major disasters. Accordingly, FEMA's
analysis focuses on the 50-year impacts of the rule on projects that
take place in the initial 10-year period, for a total period of
analysis spanning 60 years.
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The table below provides the estimated number of structures and
facilities that will be affected by the final rule over the first 10
years, assuming that each approach is the only expansion option.
Structures that are walled and roofed buildings, will comply with the
FFRMS through elevating or floodproofing to the required height.
Facilities, which are any human-made or human-placed items other than
structures, such as roads and bridges, will require different
mitigation measures in order to comply with the increased resiliency
standard of the final rule. The monetized impacts of this rule are
representative of the floodproofing and elevation mitigation measures
that will be required of structures. However, for reasons explained in
more detail later, FEMA was unable to monetize the impacts of the rule
for facilities.
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\303\ From 2013-2022, for PA, FEMA funded a total of 199,993
projects for $172.6 billion (CPI adjusted to 2022 dollars). Of that
total number of projects, FEMA funded $22.8 billion (CPI adjusted to
2022 dollars) for all PA Category E projects, which is about 13.2
percent ($22.8 billion / $172.6 billion) of the total FEMA PA
funding. For PA Category E projects within the floodplain, FEMA
funded $1.2 billion (CPI adjusted to 2022 dollars) which is about
0.7 percent ($1.2 billion / $172.6 billion) of all FEMA PA funding
or 2,437 projects which is about 1.2 percent (2,437 projects /
199,993 projects) of all FEMA PA projects.
From 2013-2022, for HMA, FEMA funded a total of 8,761 projects.
There are no data fields that show whether a project is located in a
floodplain. Therefore, FEMA used the assumption that all HMA
projects were located in the floodplain. This may lead to an
overestimate in the costs associated with HMA projects.
From 2013-2022, for IA, FEMA funded a total of 13,576 THU and
184 PHC projects. FEMA assumed that 11.1 percent of IA PHC and THU
projects would be located in the floodplain, based on PA project
data. Accordingly, FEMA estimated a 20 (184 PHC projects x 11.1
percent) PHC projects and 1,507 (13,576 THU projects x 11.1 percent)
THU projects in the current floodplain in years 1-10 of the
analysis.
\304\ These counts are based on the number of closed or
obligated projects at the time of analysis. It can take several
years for a project to close out or reach the obligation status
after the disaster year.
[GRAPHIC] [TIFF OMITTED] TR11JY24.003
The final rule will increase construction and resiliency standards
for FFRMS-affected structures and facilities. FEMA considers
implementing these standards, whether through higher vertical
elevation, floodproofing, or other mitigation measures, to be new
economic activity that will result from this rule. Accordingly, these
compliance activities are categorized as costs of this rule.
FEMA analyzed the impact of the FVA, 0.2PFA, and CISA for each of
the programs, PA, IA, and HMA, as if each approach were the only FFRMS
expansion option. FEMA selected the CISA as the primary approach as it
is the preferred option. Using the CISA as the primary approach, FEMA
has estimated that this final rule will affect 13,476 PA, IA, and HMA
structures over the first 10 years. The low estimate \305\ cost will be
between $134.0 million and $110.4 million, discounted at 3 and 7
percent respectively, with a 60-year annualized cost between $4.8
million and $7.9 million, discounted at 3 and 7 percent. The high
estimate cost will be between $169.8 million and $139.9 million,
discounted at 3 and 7 percent respectively, with a 60-year annualized
cost between $6.1 million and $10.0 million, discounted at 3 and 7
percent respectively. These costs include additional training for FEMA
staff, as well as the total cost for additional elevation and
floodproofing. FEMA is unable to quantify the cost for increased
resiliency standards for an estimated 26,985 affected facility projects
over the first 10-year period of the analysis. Additionally, FEMA is
unable to quantify the cost for projects that may be diverted out of
the floodplain, impacts to projects with existing basements, project
delays, or forgone projects that may result from this rule.
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\305\ FEMA estimated a range of possible costs since it was not
able to accurately estimate the number of new construction projects
that would elect to elevate versus those that would elect to
floodproof, so estimates are provided for both the cost of elevating
all new construction projects and the costs of floodproofing all new
construction projects.
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Because the cost to implement the FFRMS mitigation measures will be
shared between FEMA and grant recipients according to statutory cost
shares, there are also important distributional impacts. The majority
of these costs will be borne by FEMA through additional grants (a
transfer from FEMA to grant recipients). Grant recipients will bear the
remaining costs. Using the CISA as the primary approach, FEMA estimates
that this final rule will affect 13,476 structures in the first 10
years. FEMA presents the change in transfer payments from FEMA to grant
recipients as a range because of uncertainty regarding whether new
construction projects would be floodproofed or elevated. The low
estimate ranges between $104.7 million and $86.2 million, discounted at
3 and 7 percent respectively, with a 60-year increase in transfers
between $3.8 million and $6.1 million annually, discounted at 3 and 7
percent respectively. The high estimate ranges between $134.2 million
and $110.5 million, discounted at 3 and 7 percent
[[Page 57016]]
respectively, with a 60-year increase in transfers between $4.8 million
and $7.9 million annually, at 3 and 7 percent respectively.
Grant recipients will be responsible for between $22.6 million and
$18.6 million, discounted at 3 and 7 percent respectively, with a 60-
year annualized amount between $0.8 million and $1.3 million, at 3 and
7 percent respectively for the low estimate. The high estimate ranges
between $27.8 million and $22.9 million, discounted at 3 and 7 percent
respectively, with a 60-year annualized amount of $1.0 million and $1.6
million, at 3 and 7 percent respectively. Not included in these
estimates are the additional grants FEMA will provide or the additional
costs recipients will incur for their portion of the cost share, for
any of the elevation and floodproofing costs that FEMA is unable to
monetize.
FEMA has been able to quantify benefits for a small portion of
projects affected by the rule. Using CISA as the primary approach, FEMA
estimates that 1,154 PA Category E (Public Buildings) \306\ projects
will be subject to the FFRMS in the first 10 years. Assuming a 59-inch
Sea Level Rise,\307\ FEMA estimates that the present value benefits of
one additional foot of freeboard for the 50-year useful life of
projects undertaken during the 10-year period of analysis ranges at the
low end between $56.1 million and $46.2 million, discounted to the
beginning of Year 1 at 3 and 7 percent respectively, with a 60-year
annualized benefit between $2.0 million and $3.3 million. The high
estimate ranges between $66.1 million and $54.4 million, discounted to
the beginning of Year 1 at 3 and 7 percent respectively, with a 60-year
annualized benefit between $2.4 million and $3.9 million. These
quantified benefits include estimates of avoided physical damage,
avoided displacement, and avoided loss of function for the 1,154 PA
Category E projects over their 50-year useful life. In addition,
unquantified benefits of this final rule include the reduction in
damage to 12,322 affected IA and HMA structures and their contents from
future floods, 26,985 PA and HMA facilities, potential lives saved,
public health and safety benefits, reduced recovery time from floods,
and increased community resilience to flooding.
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\306\ FEMA Public Assistance. https://www.fema.gov/fact-sheet/fema-public-assistance-0. Accessed April 23, 2024.
\307\ For FEMA's primary estimate, FEMA used 59 inches of SLR,
due to it being the closest SLR option to FEMA's +5-ft assumption
for CISA. CISA is the preferred approach for FFRMS if the data are
available. Since 5 ft is equivalent to 60 inches (5 x 12 inches per
foot), 59-inch SLR is the closest SLR option that FEMA has available
to use for this portion of the analysis.
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Table 5 shows the summary of the total costs, benefits, and
distributional impacts of the final rule.
[[Page 57017]]
[GRAPHIC] [TIFF OMITTED] TR11JY24.004
[[Page 57018]]
[GRAPHIC] [TIFF OMITTED] TR11JY24.005
PA Projects
FEMA provides PA grants to public and certain non-profit entities
for the rebuilding, replacement, or repair of public and non-profit
structures and facilities damaged by disasters. PA projects that
involve new construction, substantial improvement, or repairs to
address substantial damage are affected by this rule. FEMA divides its
PA work into categories A-G.\308\ Projects that get funding under PA
Categories C (Roads and Bridges), D (Water Control Facilities), E
(Public Buildings), F (Utilities), and G (Parks, Recreational Areas,
and Other Facilities) are affected by this rule, but FEMA is only able
to provide estimates of costs associated with Category E (Public
Buildings). FEMA has adequate data to estimate the additional costs for
structures subject to the FFRMS, so monetized impacts are only
available for Category E projects. The remaining PA categories fund
facilities that are not subject to the same elevation and floodproofing
requirements as buildings.
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\308\ PA Category A-Debris Removal and Category B-Emergency
Protective Measures do not fund building or repair of structures and
are not subject to the FFRMS.
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44 CFR part 9 classifies projects as either structures or
facilities. Under this rule, a structure is a walled and roofed
building, including mobile homes and gas or liquid storage tanks.
Structures will be subject to freeboard requirements to floodproof or
elevate to a certain level above the BFE. Freeboard is the additional
height above the BFE to which the structure is floodproofed or elevated
for the purpose of reducing the risk of flood damage.
In contrast, facilities are any human-made or human-placed item
other than a structure, including roads, bridges, power lines, water
control facilities, and other types of infrastructure. Facility
mitigation measures are more varied and highly project-specific. For
example, damage to roads during flood events can be caused by numerous
events, such as erosion and scour, inundation by floodwater, or debris
blockage. Likewise, the mitigation measures to address the damages can
include a variety of approaches, such as installing low water
crossings, increasing culvert size, installing a relief culvert, adding
riprap to a road embankment, and many others.\309\
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\309\ FEMA. ``FEMA B-797 Hazard Mitigation Field Book:
Roadways.'' 2010. Available at https://www.fema.gov/sites/default/files/2020-07/b797_hazmit_handbook.pdf.
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Due to the highly project-specific nature of facilities projects,
and the numerous options available for making them resilient, FEMA
cannot estimate the costs of improving flood resiliency of facilities.
Where FEMA provides funding for facilities to complete new
construction, substantial improvement, or repairs to address
substantial damage, the projects must incorporate minimization measures
that will consider the FFRMS flood elevation. However, floodproofing
and elevation to a specific height may not be appropriate as a
minimization measure for facilities, depending on the facility. FEMA
cannot estimate the cost due to the variability of those measures,
which may include a variety of approaches. Facilities that are already
located in the 1 percent annual chance floodplain for non-critical
actions or 0.2 percent annual chance floodplain for critical actions
must take resilience measures under current regulations. Based on 2013-
2022 data, FEMA estimates that about 1,036 Category C projects, 120
Category D projects, 208 Category F projects, and 314 Category G
projects may be affected by the FFRMS each year.
For PA Category E projects, if the FVA is the only expansion
option, FEMA estimates the final rule will affect 899 projects over the
first 10 years. The costs
[[Page 57019]]
would be incurred in the first 10 years of the 60-year period because
that is when the investment in those projects takes place. Accordingly,
FEMA estimated that the average annual costs in years 1-10 will range
between $4.3 million and $5.5 million. The average Federal cost share
for PA projects from 2013-2022 was 85.0 percent. Accordingly, FEMA
estimates that it will cover 85.0 percent of the cost to elevate or
floodproof PA projects, for a total of between $3.6 million and $4.7
million in additional grants per year for the first 10 years. Grant
recipients will bear the remaining cost of between $0.6 million and
$0.8 million per year for the first 10 years.
For PA Category E projects, if 0.2PFA is the only expansion option,
FEMA estimates the final rule will affect 688 projects over the first
10 years. Because these costs are incurred in the first 10 years, FEMA
estimated the average annual costs in years 1-10 will range between
$2.5 million and $3.2 million. Using the historical average 85.0
percent Federal cost share, FEMA estimates that it will cover 85.0
percent of the cost to elevate or floodproof PA projects, for a total
of between $2.1 million and $2.8 million in additional grants per year
for the first 10 years. Grant recipients will bear the remaining costs
of approximately $0.4 million and $0.5 million per year for the first
10 years.
For PA Category E projects, if CISA is the only expansion option,
FEMA estimates the final rule will affect 1,154 projects over the first
10 years. Because these costs are incurred in the first 10 years, FEMA
estimated the average annual costs in years 1-10 will range between
$10.4 million and $14.5 million. Using the historical average 85.0
percent Federal cost share, FEMA estimates that it will cover 85.0
percent of the cost to elevate or floodproof PA projects, for a total
of between $8.9 million and $12.3 million in additional grants per year
for the first 10 years. Grant recipients will bear the remaining cost
of between $1.6 million to $2.2 million per year for the first 10
years.
[GRAPHIC] [TIFF OMITTED] TR11JY24.006
IA Projects
Individual Assistance (IA) grants are provided to individuals who,
as a direct result of a disaster, have necessary expenses and serious
needs that they are unable to meet through other means. IA funding is
divided into Housing Assistance and Other Needs Assistance. Other Needs
Assistance under IA provides financial assistance for medical, dental,
childcare, funeral, personal property, transportation, or other
necessary expenses or serious needs and is not subject to FFRMS
requirements. Under Housing Assistance, FEMA may provide temporary
housing assistance (financial assistance or direct assistance in the
form of temporary housing units), a capped amount of financial
assistance for the repair or replacement of disaster-damaged private
residences; and, in rare circumstances, financial or direct assistance
to construct permanent or semi-permanent housing.
The financial caps on housing repair or replacement assistance
means IA grants do not generally fund new construction or substantial
improvements. However, two types of IA grants are affected by the final
rule: IA Permanent Housing Construction (PHC) projects, and sales and
disposal of temporary housing units (THUs). PHC is Federal assistance
that FEMA provides under IA for the purpose of constructing permanent
housing where alternative housing resources are unavailable or scarce.
IA also includes the sale and disposal of THUs such as mobile housing
units and recreational vehicles; THUs located in the FFRMS floodplain
will be subject to the requirements of this rule. FEMA regulations
prohibit the floodproofing of residential structures at or below the
BFE, and so elevation is the only option.\310\
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\310\ See 44 CFR 60.3.
See also Floodproofing. FEMA. Available at: https://www.fema.gov/glossary/floodproofing. Last accessed: January 11,
2023.
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FEMA has calculated the cost of elevating PHC structures, depending
on FFRMS approach and location and type of project.\311\ FEMA then
subtracted certain costs that it determined to be part of the baseline.
Specifically, numerous States and localities have existing freeboard
requirements that will result in elevation costs and benefits
regardless of this rule, so costs and benefits for these areas have
been reduced based on existing requirements.
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\311\ Projects outside of the 1 percent annual chance
floodplain, but below the required level will need to be elevated to
the required level. These projects require elevations of different
levels, depending on the structure's current elevation. FEMA assumes
that half of the projects will need to be elevated 1-ft and the
other half or projects will need to be elevated 2-ft. This
assumption was made because FEMA is unsure of the actual number of
projects that will need to be elevated by 1-ft or 2-ft and so
assumed that it will be an even proportion for each height. IA
projects is all considered non-critical actions and will not require
a 3-ft level.
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For IA, if the FVA is the only expansion option, FEMA estimates
that the final rule will affect 1,434 structures over the first 10
years. These costs would be incurred in the first 10 years of the 60-
year period because that is when the investment in those projects takes
place. Accordingly, FEMA estimates average annual costs of $57,343 in
years 1-10. Since there is no cost share for IA, FEMA will fund the
entire cost of elevating IA projects through grants.
For IA, if the 0.2PFA is the only expansion option, FEMA estimates
that the final rule will affect 1,434 structures
[[Page 57020]]
over the first 10 years. Because these costs would be incurred in the
first 10 years of the analysis, FEMA estimates the average annual cost
in years 1-10 is $57,343. Since there is no cost share for IA, FEMA
will fund the entire cost of elevating IA projects through grants.
For IA, if the CISA is the only expansion option, FEMA estimates
that the final rule will affect 1,924 projects over the first 10
years.\312\ Because these costs would be incurred in the first 10 years
of the analysis, FEMA estimates that the average annual cost in years
1-10 is $168,174. Since there is no cost share for IA, FEMA will fund
the entire cost of elevating IA projects through grants.
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\312\ For analysis purposes, FEMA calculated the expanded
floodplain using the mid-point (and rounded down) to +5-ft CISA
which would expand the floodplain by 26 percent. FEMA opted for the
mid-point for CISA because this is the best approach with available
data. Please see further explanation in the appropriate CISA
sections: 7.4.3, 7.5.3, and 7.6.3.
[GRAPHIC] [TIFF OMITTED] TR11JY24.007
HMA Projects
FEMA provides Hazard Mitigation Assistance (HMA) grants to States,
territories, Federally-recognized Tribes, and local communities for the
implementation of hazard mitigation measures to increase resiliency to
disasters. Hazard mitigation is defined as any action taken to reduce
or eliminate long-term risk to people and property from natural
hazards. HMA projects related to flood mitigation mainly include
elevation of structures, floodproofing of structures, and acquisition
of properties that are at a high risk of damage from flooding. HMA also
funds various other types of projects such as minor flood control,
property acquisition, and generators, 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. HMA grant program includes Hazard Mitigation Grant Program
(HMGP), HMGP Post Fire, Pre-Disaster Mitigation (PDM), Building
Resilient Infrastructure and Communities (BRIC), and Flood Mitigation
Assistance (FMA). Between 2010 and 2019, FEMA funded a total of 841
minor flood control and generators projects, for an average of 84 such
projects per year. Additional minor mitigation measures will have to be
taken for these projects, if located in the expanded FFRMS floodplain.
FEMA used data from HMA grant approvals for projects that include
the elevation or floodproofing of structures from 2010-2019 and a
multi-step process to estimate the range of costs for elevating or
floodproofing these structures to the FFRMS.
For HMA, if the FVA is the only expansion option, FEMA estimated
the final rule will affect 7,755 structures over the first 10 years.
These costs would be incurred in the first 10 years of the 60-year
period because that is when the investment in those projects would take
place. Accordingly, FEMA estimates average annual costs in years 1-10
of $1.8 million. Using the 75 percent Federal cost share, FEMA
estimates that it will cover 75 percent of the cost to elevate or
floodproof HMA projects, for a total of $1.4 million in additional
grants per year in years 1-10. Grant recipients will bear the remaining
cost of $0.5 million per year.
For HMA, if the 0.2PFA is the only expansion option, FEMA estimated
that the final rule will affect 7,712 structures in the first 10 years.
Because these costs would be incurred in the first 10 years of the
analysis, FEMA estimates the average annual cost in years 1-10 will be
$1.8 million. Using the 75 percent Federal cost share, FEMA estimates
that it will cover 75 percent of the cost to elevate or floodproof HMA
projects, for a total of $1.4 million in additional grants per year in
years 1-10. Grant recipients will bear the remaining cost of $0.5
million per year.
For HMA, if the CISA is the only expansion option, FEMA estimated
that the final rule will affect 10,398 structures over the first 10
years. Because these costs would be incurred in the first 10 years,
FEMA estimates that the average annual cost in years 1-10 is $4.3
million. Using the 75 percent Federal cost share, FEMA estimates that
it will cover 75 percent of the cost to elevate or floodproof HMA
projects, for a total of $3.2 million in additional grants per year.
Grant recipients will bear the remaining cost of $1.1 million per year.
[GRAPHIC] [TIFF OMITTED] TR11JY24.008
[[Page 57021]]
Need for Regulation
Executive Order 11988, as amended, requires agencies to improve the
resilience of communities and Federal assets against the impacts of
flooding. The FFRMS is a flood resilience standard that provides a
flexible framework to increase resilience against flooding and help
preserve the natural values of floodplains and wetlands. Incorporating
the FFRMS ensures FEMA expands flood risk management from the current
base flood elevation to a higher vertical elevation and corresponding
horizontal floodplain to address current and future flood risk and
ensure that projects funded with taxpayer dollars last as long as
intended.
Affected Population
The affected population is FEMA grant recipients whose projects are
located in the current and the expanded FFRMS floodplain. Grant
recipients will be required to comply with the new standard by
elevating or floodproofing projects located in the expanded FFRMS
floodplain. Specific grant programs include PA, IA, and HMA. PA grant
recipients include public and certain non-profit entities, IA grant
recipients include individuals, and HMA grant recipients include
States, territories, Federally-recognized Tribes, and local
communities.
The implementation of the FFRMS will have negligible impacts on
community property values, tax bases and the distribution of real
income. Additionally, FEMA expects the impacts on affordable housing
for low to moderate income households and disadvantaged communities to
be minimal since most actions subject to FFRMS requirements are non-
residential. FEMA only funds residential construction in the IA and HMA
programs; FEMA funds 153 residential IA projects and 268 HMA
residential projects per year on average.
Baseline
Under current FEMA regulations set out in 44 CFR part 9, the base
floodplain is defined as the 100-year floodplain (1 percent annual
chance), or for critical actions, defined as the 500-year floodplain
(0.2 percent annual chance). New construction or substantial
improvement of structures located in the base floodplain must be
elevated to or above the 1 percent annual chance flood level or Base
Flood Elevation (BFE) or floodproofed below the BFE. Critical actions
located within either the 1 percent annual chance floodplain or the 0.2
percent annual chance floodplain must be elevated or floodproofed up to
the corresponding elevation for the 0.2 percent annual chance
floodplain where it is mapped.\313\
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\313\ FEMA's project level data for IA, PA, and HMA delineate
whether projects are in the Special Flood Hazard Area (1 percent
annual chance floodplain) but do not show whether they are in the
0.2 percent chance floodplain. For critical actions, FEMA was unable
to determine the baseline number of critical actions that are
located in the 0.2 percent chance floodplain. Regardless of which
floodplain the project is in, a critical action must be elevated at
or above the 0.2 percent annual chance flood level.
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FEMA has interim policies for PA and HMA that partially implement
FFRMS and ASCE 24 standards in some areas, discussed in further detail
below. Depending on the criticality of the action, these programs apply
the supplemental FFRMS policy either to the base floodplain, or to both
the 100-year and 500-year floodplains for critical actions. At the time
the NPRM RIA was conducted, these partial implementation policies had
been in place for less than 2 years. These policies were issued as
temporary, partial implementation of the FFRMS until FEMA could
implement it through this rulemaking. FEMA conducted this Regulatory
Impact Analysis against a pre-statutory baseline to capture the
economic impacts of the FFRMS and more accurately to measure the
impacts of the rule against the world without the interim PA and HMA
policies. Likewise, data on projects that adhered to the ASCE 24
standards is not available. Accordingly, FEMA used a pre-guidance
baseline for this final rule to measure the impacts of the rule against
the world without these policies and in accordance with the current
requirements of 44 CFR part 9.
PA Interim Policy
The June 3, 2022 PA interim partial implementation policy \314\
provides elevation requirements for critical and non-critical actions
involving structures located in a designated floodplain. The policy
established requirements for elevating and floodproofing structures
funded under the PA program. The interim policy set forth principles at
its issuance that ensure that communities affected by future flooding
are less vulnerable to losses of life and property, that investment of
PA program funds for projects in the floodplain are spent to protect
structures from flood risk, that structures are elevated or
floodproofed to address current and future flood risk, and that the
policy is implemented in a consistent and equitable manner.
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\314\ Partial Implementation of the Federal Flood Risk
Management Standard for Public Assistance (Interim). FEMA Policy
104-22-0003. Available at: https://www.fema.gov/sites/default/files/documents/fema_fp-104-22-0003-partial-implemetnation-ffrms-pa-interim.pdf. Last accessed: July 20, 2022.
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This policy is being applied to structures (walled or roofed
buildings, including mobile homes and gas or liquid storage tanks) in a
mapped or established 1 percent annual chance floodplain or 0.2 percent
annual chance floodplain \315\ that have a substantial damage \316\
determination, require substantial improvement,\317\ or involve new
construction.\318\ This applies regardless of the cause of damage.
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\315\ Under 44 CFR 9.4, Floodplain means the ``lowland and
relatively flat areas adjoining inland and coastal waters including,
at a minimum, that area subject to a one percent or greater chance
of flooding in any given year. Wherever in this regulation the term
floodplain is used, if a critical action is involved, floodplain
shall mean the area subject to inundation from a flood having a 0.2
percent chance of occurring in any given year (500-year floodplain).
Floodplain does not include areas subject only to mudflow until FIA
adopts maps identifying M Zones.''
\316\ Under 44 CFR 59.1, Substantial Damage means ``damage of
any origin sustained by a structure whereby the cost of restoring
the structure to its before damaged condition would equal or exceed
50 percent of the market value of the structure before the damage
occurred.''
\317\ Under 44 CFR 9.4, 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 Disaster Relief Act of 1974) (a) before the repair or
improvement is started, or (b) 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.''
\318\ Under 44 CFR 9.4, New Construction means ``the
construction of a new structure (including the placement of a mobile
home) or facility or the replacement of a structure or facility
which has been totally destroyed.''
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HMA Interim Policy
The August 26, 2021 HMA interim partial implementation policy \319\
sets forth the elevation requirements for the use of FEMA HMA for non-
critical actions involving structure elevation, dry floodproofing, and
mitigation reconstruction projects in the 1 percent annual chance
floodplain.320 321
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\319\ Partial Implementation of the Federal Flood Risk
Management Standard for Hazard Mitigation Assistance Programs
(Interim). FEMA Policy FP-206-21-0003. Available at: https://www.fema.gov/sites/default/files/documents/fema_policy-fp-206-21-0003-partial-mplementation-ffrms-hma-programs-interim.pdf. Last
accessed: July 20, 2022.
\320\ FEMA implemented an update to the HMA interim policy on
December 2022. This updated interim policy provides updated
elevation requirements for critical and non-critical actions
involving structures as defined in 44 CFR part 9.4 located in a
designated floodplain. The updated interim policy also provides
updated requirements for elevating and floodproofing structures
funded under HMA programs. The RIA does not address the changes in
the updated HMA interim policy.
\321\ The 1 percent annual chance floodplain is currently also
defined as the Special Flood Hazard Area under the NFIP.
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[[Page 57022]]
The updated HMA interim policy,\322\ which supersedes the initial
HMA interim policy, provides elevation requirements for critical and
non-critical actions involving structures (as defined in 44 CFR 9.4)
located in a designated floodplain. This updated interim policy covers
the additional flexibility for non-critical actions to select the lower
of the 0.2PFA or +2-ft above the BFE and setting elevation requirements
for critical actions involving structures.
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\322\ Partial Implementation of the Federal Flood Risk
Management Standard for Hazard Mitigation Assistance Programs. FEMA
Policy 206-21-003-0001. Available at: https://www.fema.gov/sites/default/files/documents/fema_policy-fp-206-21-003-0001-implementation-ffrms-hma-program_122022.pdf. Last accessed: December
30, 2022.
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By partially implementing the FFRMS and requiring a higher vertical
flood elevation for certain non-critical actions, FEMA is helping to
ensure that communities affected by future flood disasters are less
vulnerable to losses of life and property. This policy purpose is to
improve the resilience of non-critical actions involving structure
elevation, dry floodproofing, and mitigation reconstruction projects
located in the SFHA against the impacts of flooding, which are
anticipated to increase over time due to changing conditions and other
threats; and to ensure such projects will last as long as intended.
Total Costs
This final rule will increase costs for certain IA, PA, and HMA
program projects, as well as result in administrative costs for FEMA.
FEMA expects minimal effects on grants processed by FEMA's GPD because
these programs involve grants for preparedness activities and generally
do not fund new construction or substantial improvement projects.
Future FEMA facilities that may be located within the FFRMS floodplain
will also be subject to the requirements of the final rule.
FEMA is unable to quantify the cost for increased resiliency
standards for the 26,985 facility projects estimated to be affected in
the first 10 years after this rule's publication. Additionally, FEMA is
unable to quantify the cost for projects that may be diverted out of
the floodplain, impacts to projects with existing basements, project
delays, or forgone projects that may result from this rule.
Using the CISA as the primary approach, FEMA estimates that the
final rule will affect 13,476 PA, IA, and HMA structures over the first
10 years. Those costs are incurred in the first 10 years of the 60-year
period because that is when the investment in those projects takes
place.\323\ Discounted over 60 years, the low estimate \324\ cost is
between $134.0 million and $110.4 million, using 3 and 7 percent
respectively, with a 60-year annualized cost of $4.8 million and $7.9
million, using 3 and 7 percent respectively (see Table 9). Discounted
over 60 years, the high estimate cost is between $169.8 million and
$139.9 million, using 3 and 7 percent respectively, with a 60-year
annualized cost of $6.1 million and $10.0 million, using 3 and 7
percent (see Table 10). Monetized costs include additional training for
FEMA staff as well as the cost for the additional elevation or
floodproofing. FEMA is unable to quantify the cost for increased
resiliency standards for an estimated 26,985 affected facility projects
over the 10-year period of analysis. Additionally, FEMA is unable to
quantify the cost for projects that may be diverted out of the
floodplain, impacts to projects with existing basements, project
delays, or forgone projects that may result from this rule.
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\323\ FEMA limited its dollar-valuation to the projects impacted
in the first 10 years after the rule's effective date. FEMA has
considered the resulting costs, benefits, and transfer payments of
the final rule on those projects over a 50-year period, for a total
of 60 years. The costs and transfers occur in the first 10 years of
the 60-year period because that is when the initial investment to
elevate or floodproof them to meet the FFRMS requirements takes
place. This is an upfront cost that occurs when the project is
constructed. However, the benefits of the final rule are realized
over the 50-year useful life of the affected structures.
\324\ FEMA has created a range for the administrative costs:
between if all projects used the FFSST (low estimate) and if all
used the Job Aid (high estimate). FEMA acknowledges that there may
be situations where a combination of the FFSST and Job Aid may be
used. However, FEMA was unable to estimate how many would use the
FFSST and how many would use the Job Aid since the FFSST is
currently being improved. In reality, the administrative costs will
likely fall somewhere within the low and high estimates.
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[[Page 57023]]
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[GRAPHIC] [TIFF OMITTED] TR11JY24.010
Total Benefits
FEMA believes that the benefits of the final rule will justify the
costs. FEMA has identified qualitative benefits, including reductions
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 has
also analyzed quantified benefits of one additional foot of freeboard
for PA projects using the CISA.
This final rule will result in savings in time and money from a
reduced recovery period after a flood, as well as the increased safety
of individuals. Generally, if properties are protected, there will be
less damage, resulting in less recovery time. In addition, higher
elevations will help to protect people, leading to increased safety.
FEMA is unable to quantify these benefits but discusses them
qualitatively in the Regulatory Impact Analysis.
In support of these benefits, FEMA is using the 2022 Benefits
Analysis of Increased Freeboard for Public and Nonresidential Buildings
in Riverine and Coastal Floodplains \325\ (2022
[[Page 57024]]
report) that analyzed potential benefits (such as a reduction in
damages, displacement, and loss of function, from increased flood
protection requirements for public and nonresidential use buildings
located in riverine and coastal SFHAs). This report's scope included
six construction methods in coastal and riverine areas: Elementary
School 1-Story, Hospital 2-3 Stories, Police Station 2-Stories, Office
Building (Business) 1-Story, Office Building (Business) 3-Story, and
Office Building (Government office) 1-Story. The riverine analysis
considered locations along 14 rivers, while the coastal analysis
considered 12 different locations along a hypothetical coastal
transect; both only considered scenarios based on future conditions.
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\325\ A Benefits Analysis of Increased Freeboard for Public and
Nonresidential Buildings in Riverine and Coastal Floodplains. FEMA.
Draft, July 2022. Available at: https://www.regulations.gov/document/FEMA-2023-0026-0003. Last accessed: March 22, 2024.
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Future conditions for the riverine analysis included two climate
change scenarios: the Representative Concentration Pathways (RCP) 4.5
scenario and the RCP 8.5 scenario that represent various efforts to
curb future emissions.\326\ The study used these two climate change
scenarios to evaluate the amount of increase or decrease in riverine
flood elevations over the next 50 years. For the coastal analysis, the
study included the impact of various sea level rise conditions in areas
with wave heights less than 1.5-ft (flood zones A) that are subject to
coastal storm surge. The sea level rise conditions replicated a 2016
evaluation considering 8-, 20-, 39- and 59-inch sea level rises by
2100. FEMA has evaluated benefits associated with the rule using both
RCP 4.5 and 8.5 scenarios, and three of the four sea level rise
conditions: 8-, 39-, and 59-inches.
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\326\ Representative Concentration Pathways (RCP) are projected
future emissions and concentration trajectories for climate change
models that account for the increase in greenhouse gas, aerosol, and
chemically active gas emissions. According to the Environmental
Protection Agency, they define RCP as the following. RCP 4.5: This
scenario assumes a stabilization in GHG emissions shortly after
2100. RCP 8.5: This scenario is characterized by increasing GHG
emissions over time, and factors in the highest GHG concentration
levels of all the scenarios by 2100.
Changes Over Time. EPA. Available at: https://www.epa.gov/enviroatlas/changes-over-time. Last accessed: December 1, 2023.
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The 2022 report used FEMA's BCA Toolkit to calculate benefits for
each year between 2023 and 2072 and then used these projections to
calculate the present value benefits for each scenario.\327\ The
Toolkit used standard depth-damage functions (curves) to estimate
damages from inundation and to calculate the benefits of mitigation
that included avoided physical damage, avoided displacement (costs
incurred while staying in a temporary location following an event), and
avoided loss of function (the economic impact to a community due to a
lack of critical services). The study also considered the potential
avoided losses (or benefits) associated with either dry floodproofing
or elevation of nonresidential and public use buildings.\328\ It
compared existing freeboard requirements against one additional foot of
freeboard; that is, the study evaluated the benefits of elevating or
floodproofing to the BFE+2 from a current assumed height of BFE+1 for
non-critical actions and to BFE+3 from a current assumed height of
BFE+2 for critical actions.
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\327\ FEMA developed the BCA Toolkit to perform an analysis of
cost-effectiveness of mitigation projects. The BCA Toolkit uses
Office of Management and Budget cost-effectiveness guidelines and
FEMA-approved methodologies and tools to complete a benefit-cost
analysis. The tool can be found here: https://www.fema.gov/grants/tools/benefit-cost-analysis#toolkit.
\328\ 2016 Evaluation of the Benefits of Freeboard for Public
and Nonresidential Buildings in Coastal Areas. https://www.regulations.gov/document/FEMA-2015-0006-0379. Page 4.
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According to this report, for critical facilities in coastal SFHAs,
such as police stations and hospitals, inclusion of one additional foot
of freeboard will provide increased protection and continuity of
operations and result in a quantifiable benefit. Elevating buildings
would help to maintain community resiliency farther into the future.
The riverine analysis indicated that despite the large variation in the
flood data for the 14 sites, inclusion of one additional foot of
freeboard would result in quantifiable average benefits. Critical
actions and schools had the highest benefits across various riverine
locations.
FEMA has used this study to estimate the benefits of an additional
foot of freeboard for non-residential PA projects. FEMA was unable to
use the benefits study to estimate the benefits for HMA and IA
projects, since HMA data cannot be broken out by building types and IA
data is limited to residential-related projects.
For FEMA's primary estimate, FEMA used 59 inches of SLR due to it
being the closest SLR option to the vertical rise in FEMA's +5-ft
assumption for CISA. CISA is the preferred approach for the FFRMS if
the data are available. Since 5 feet is equivalent to 60 inches (5 x 12
inches per foot), 59-inch SLR is the closest SLR option that FEMA had
available for this portion of the analysis. Using CISA for all PA
Category E projects that are subject to the FFRMS, with the assumption
that there would be a 59-inch SLR, FEMA estimates that the present
value benefits of one additional foot of freeboard for the 50-year
useful life of 1,154 PA Category E projects undertaken during the first
10 years after the rule's effective date will be between $56.1 million
and $46.2 million (low estimate), discounted at 3 and 7 percent
respectively, with a 60-year annualized benefit of $2.0 million and
$3.3 million, at 3 and 7 percent (See Table 11) and between $66.1
million and $54.4 million (high estimate), discounted at 3 and 7
percent respectively, with a 60-year annualized benefit of $2.4 million
and $3.9 million, at 3 and 7 percent. (See Table 12).
Tables 11 and 12 show the number of projects constructed each year
(column 2), the present value of the benefits as of the year in which
they were constructed (column 3), and the present value of the benefits
as of the beginning of Year 1, using a 3 percent and 7 percent discount
rate (columns 3 and 4, respectively). For example, the benefits shown
in Year 1 represent the present value of the benefits for the 115
Category E projects constructed in Year 1 over their 50-year useful
life (i.e., in Years 1-50 of the analysis). The analysis does not
account for any benefits for Year 1 projects after their 50-year useful
life. The benefits shown in Year 10 represent the present value of the
benefits for projects constructed in Year 10 over their 50-year useful
life, (i.e., in Years 11-60 of the analysis).
BILLING CODE 9111-66-P
[[Page 57025]]
[GRAPHIC] [TIFF OMITTED] TR11JY24.011
[GRAPHIC] [TIFF OMITTED] TR11JY24.012
Total Transfer Payments
Because the cost to implement the FFRMS mitigation measures will be
shared between FEMA and grant recipients according to the statutory
cost share, there are also important distributional impacts. The
majority of elevation and floodproofing costs will be borne by FEMA
through additional grants (a transfer from FEMA to grant recipients).
Grant recipients will bear the remaining cost. The below section shows
the additional transfers from FEMA to grant recipients. Using CISA as
the primary approach, FEMA estimates that this final rule will affect
13,476 structures in the first 10 years resulting in an increase in
transfer payments (i.e., grants) over the 60-year period of analysis.
FEMA's low estimate of the increase in transfer payments is between
$104.7 million and $86.2 million, with a 60-year transfer between $3.8
million and $6.1 million annually, at 3 and 7 percent respectively (see
Table 13). FEMA's high estimate of the increase in transfer payments is
between $134.2 million and $110.5 million, with a 60-year transfer
between $4.8 million and $7.9 million annually, at 3 and 7 percent
discount rates, respectively (see Table 14).
[[Page 57026]]
[GRAPHIC] [TIFF OMITTED] TR11JY24.013
[GRAPHIC] [TIFF OMITTED] TR11JY24.014
In Tables 15 and 16, FEMA presents the cost, transfer payments and
benefit estimates by FFRMS approach. FEMA also presents estimates of
costs, transfers, and benefits by grant program for CISA, FEMA's
primary approach. The administrative cost estimate is not broken down
by grant program because much of the cost will exist regardless of the
program. Quantitative estimates of benefits are only available for
projects under PA category E (Public Buildings). Due to the highly
project-specific nature of facilities projects, and the numerous
options for making them resilient, FEMA cannot estimate the costs of
improving flood resiliency of facilities.\329\ Tables 15 and 16 show
that the total 60-year benefits for non-residential PA Category E
projects constructed in the first 10 years is $54.4 million (7 percent,
high). This benefit is for adding one foot of freeboard, assuming a 59-
inch SLR. Although the cost for residential and non-residential PA
Category E projects is $133.3 million (7 percent, high), this cost
represents 5 feet of freeboard (FEMA's assumption for CISA).\330\ FEMA
does not have data to quantify the benefits of additional freeboard,
and thus the quantified benefits represent only a portion of the
[[Page 57027]]
increased risk reduction that will be achieved through this rule.
Ensuring projects are built to the height necessary to avoid additional
loss scenarios will provide additional unquantified benefits of avoided
damages to the structure, decreased cleanup time and disruption to the
community, and increased public health and safety. Moreover, FEMA's use
of CISA as its preferred approach will use the best available and
actionable scientific data to tailor future flooding risk to each
project, ensuring that projects are built only to the height necessary
and thus maximizing net benefits. Accordingly, FEMA believes the
benefits of the rule--quantified and unquantified--will justify its
costs.
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\329\ Category E projects are public buildings and contents. See
``Public Assistance Program and Policy Guide'' Page 51, at https://www.fema.gov/sites/default/files/documents/fema_pappg-v4-updated-links_policy_6-1-2020.pdf.
\330\ Costs for the FVA may be a better comparison because they
represent 2 or 3 feet of freeboard, depending on criticality.
However, the number of projects using FVA and CISA differ, making
such a comparison difficult.
\331\ To obtain the total costs as in Section 7.12, add each
individual approach to the FEMA admin cost. For example, CISA + FEMA
admin = total CISA cost.
[GRAPHIC] [TIFF OMITTED] TR11JY24.015
[[Page 57028]]
[GRAPHIC] [TIFF OMITTED] TR11JY24.016
In Table 17, FEMA presents the OMB A-4 Accounting Statement. FEMA's
analysis presents a range for costs and transfers of +5-ft of
freeboard, and the benefits of +1-ft of freeboard. The range is due to
uncertainty about whether new construction PA Category E projects will
choose to floodproof or elevate.\333\ Accordingly, FEMA's PA minimum
estimate assumes all new construction projects choose to floodproof and
the maximum assumes all new construction projects choose to elevate.
FEMA's analysis for HMA and IA projects do not have a range. Table ES-
14 shows the primary costs and transfers using the CISA approach only
and the average of the ranges. FEMA has calculated the total benefits
using the minimum and maximum estimates of PA benefits. FEMA has
calculated the primary benefit estimates using the CISA approach with a
59-inch SLR and then taking the average of this range.
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\332\ To obtain the total costs as in Section 7.12, add each
individual approach to the FEMA admin cost. For example, CISA + FEMA
admin = total CISA cost.
\333\ Because it is more expensive to elevate substantial repair
projects than to floodproof them, FEMA assumes that all substantial
repair projects will choose to floodproof.
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[[Page 57029]]
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[[Page 57030]]
[GRAPHIC] [TIFF OMITTED] TR11JY24.018
BILLING CODE 9111-66-C
B. Regulatory Flexibility Act
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\334\ FEMA has calculated the primary estimates by calculating
the average of the minimum and the maximum estimates for respective
each percent. For example, for the primary 3 percent benefits, FEMA
calculated the average for 3 percent discount minimum and 3 percent
discount maximum.
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This section considers the effects that this rule will 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 a Final Regulatory Flexibility Analysis (FRFA) for
this rule. This analysis is detailed in this section and represents
FEMA's assessment of the impacts of this rule on small entities.
Section 1 outlines FEMA's assessment of small entities that will be
affected by the regulations. Section 2 presents FEMA's analysis and
summarizes the steps taken by FEMA to comply with the FRFA.
1. Assessment of Small Entities Affected by the Regulations
This rule will affect FEMA grant recipients that receive Federal
funds under the PA, IA, and HMA programs for new construction,
substantial improvement to structures, or to address substantial damage
to structures and
[[Page 57031]]
facilities. Recipients of these grants are primarily States, Tribal
governments, local governmental jurisdictions, and certain 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 addresses the below requirements of a FRFA:
(1) a statement of the need for, and objectives of, the rule;
(2) a statement of the significant issues raised by the public
comments in response to the initial regulatory flexibility analysis, a
statement of the assessment of the agency of such issues, and a
statement of any changes made in the proposed rule as a result of such
comments;
(3) the response of the agency to any comments filed by the Chief
Counsel for Advocacy of the Small Business Administration in response
to the proposed rule, and a detailed statement of any change made to
the proposed rule in the final rule as a result of the comments;
(4) a description of and an estimate of the number of small
entities to which the rule will apply or an explanation of why no such
estimate is available;
(5) a description of the projected reporting, recordkeeping, and
other compliance requirements of the 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;
(6) a description of the steps the agency has taken to minimize the
significant economic impact on small entities consistent with the
stated objectives of applicable statutes, including a statement of the
factual, policy, and legal reasons for selecting the alternative
adopted in the final rule and why each one of the other significant
alternatives to the rule considered by the agency which affect the
impact on small entities was rejected.
2.1 Statement of the need for, and objectives of the 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,
directing agencies to issue or amend existing regulations and
procedures to implement the Executive Order, FEMA promulgated
regulations located at 44 CFR part 9. FEMA is revising 44 CFR part 9 to
reflect the changes to Executive Order 11988 made by Executive Order
13690.
The objective of the rule is to revise the regulations for locating
actions subject to the FFRMS 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 rule, the rule
will impose more stringent elevation and resilience requirements. This
is necessary to protect actions where even a slight chance of flooding
is too great.
The rule will also require the use, where possible, of natural
features and nature-based approaches when developing alternatives for
consideration that will accomplish the same purpose as a considered
action but have less potential to affect or be affected by the
floodplain. Common examples of a nature-based approach will be
replacing concrete drainage systems with natural drainage or covering
an area with plants to absorb water and reduce runoff.
Several programs exist to assist with flood mitigation or recovery
efforts after a flood.\335\ IA and PA are disaster relief programs and
primarily provide assistance after a disaster. HMA Grants are provided
to increase resilience to hazards, and these have been shown to be very
effective. By requiring recipients of FEMA funding to consider an
expanded floodplain and build a higher level of flood resilience into
their projects, the rule will reduce the likelihood of further damage
and help prevent the loss of life in future flooding events. This will
compel recipients of Federal funds to build to higher flood resilience
standards and avoid repetitive loss situations.
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\335\ In addition to the FEMA-administered grant programs
discussed in this analysis (IA, PA, HMA, and programs administered
by GPD), FEMA also provides flood insurance through the NFIP. FEMA
does not apply 44 CFR part 9 to non-grant site specific actions
under the NFIP.
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2.2 Statement of the significant issues raised by the public
comments in response to the Initial Regulatory Flexibility Analysis
(IRFA), a statement of the assessment of the agency of such issues, and
a statement of any changes made to the proposed rule as a result of
such comments.
FEMA did not receive any comments on the IRFA for this rule, and
therefore did not make any changes to this FRFA due to public comments.
2.3 The response of the agency to any comments filed by the Chief
Counsel for Advocacy of the Small Business Administration (SBA) in
response to the proposed rule, and a detailed statement of any change
made to the final rule as a result of the comments.
FEMA did not receive any comments on the proposed rule from the
Chief Counsel for Advocacy of the SBA.
2.4 Description of and an estimate of the number of small entities
to which the rule will apply or an explanation of why no such estimate
is available.
This rule will affect certain recipients of FEMA grants. These will
primarily be PA and HMA grant recipients, including States, Tribal
governments, local governments, and certain non-profit organizations.
The PA grant recipients will 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 E (public
buildings) because Category E is for structures whereas projects funded
under the remaining PA categories are for facilities. Facilities will
not be required to floodproof or elevate but will instead need to be
made resilient to the appropriate flood levels, which is highly
project-specific in nature, and the lack of data for such projects
makes it exceedingly difficult to estimate costs. Therefore, FEMA has
included only estimates of the number of affected facility projects but
was unable to estimate a corresponding cost. IA and GPD are not
discussed in this analysis. IA provides grants directly to individuals,
who are not small entities as defined in 5 U.S.C. 601(6). FEMA finds
that this rule will likely have no effect on GPD grants because GPD
projects are not typically substantial improvement or new construction.
FEMA estimates that the FFRMS requirements will expand the
floodplain between 5 percent and 43 percent based on a study \336\
conducted in 800 square miles of coastal and riverine areas
representative of places where the FFRMS will apply. FEMA developed
floodplain expansion estimates for two distinct areas of the country:
coastal and riverine. The first estimate was for coastal areas where
FEMA anticipates implementing the CISA approach using currently-
actionable sea level rise data. The second estimate was the area that
represented the rest of the country, where 0.2PFA or FVA approaches
will likely be applied. A total of 400 square miles of mapped flood
zones were used as the baseline estimate for each of the two areas of
the country. FEMA selected
[[Page 57032]]
a random sample of 40 coastal and riverine areas representative of the
areas where the FFRMS will apply, with at least 10 square miles in each
sampled area to ensure varying topography was captured. FEMA calculated
the floodplain expansion in each sample at various levels of freeboard
so that there was a total of 400 square miles of expansion information
for each area.
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\336\ This report is available at regulations.gov under docket
ID FEMA-2023-0026.
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FEMA selected the CISA as the primary approach for evaluating the
impacts of this final rule, since it is the preferred approach and is
designed to meet current and future estimates of flood risks unique to
the location and thus provide the best overall resilience, cost
effectiveness, and equity. FEMA does not have data detailed enough to
estimate the average CISA level within the United States for this
analysis. Instead, FEMA assumes CISA values will range from 1- to 10-ft
of freeboard, based on the anticipated interagency tools that are
currently in development. FEMA anticipates applying the CISA in those
rounded amounts as ``climate-informed freeboard.'' The 10-foot ceiling
will account for the highest levels of anticipated sea level rise along
the Gulf and Atlantic coasts. Depending on location, under the CISA,
some places may be required to elevate or floodproof to +1-ft above the
1 percent annual chance plain, while other places may be required to
use +10-ft above the 1 percent annual chance plain. However, FEMA does
not have available data or research to estimate what the required
levels or how many structures will be subject to the requirements. For
analysis purposes, FEMA has calculated the expanded floodplain using
the mid-point (rounded down), +5-ft CISA level, which FEMA estimates
will expand the floodplain by 26 percent.
FEMA considered using the minimum and maximum levels, but the
minimum and maximum levels will not reflect the impacts of the rule
accurately. FEMA did not use the minimum level for this approach
because it will reflect a large number of structures that were not
elevated or floodproofed to a high enough standard, when the rule may
actually require them to be subject to a higher standard. If FEMA
modeled all structures at the minimum standard, the costs would be
underestimated compared to the actual impact of the rule. The benefits
of protecting the structures from flood will also be underestimated
because at the minimum level, many structures will be left vulnerable
to devastating flood damage. Likewise, FEMA did not use the maximum
level because it will reflect a large number of structures elevated or
floodproofed to a standard too high compared to what the rule may
require. If FEMA modeled all structures at the maximum standard, the
costs would be overestimated compared to the actual impact. The
benefits of protecting the structures from flood could potentially be
overestimated as well, and not reflect the actual impact of the rule.
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 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 will incur additional
costs to comply with elevation and floodproofing requirements. From
2013-2022, 916 individual PA Category E grant recipients received FEMA
funding for substantial improvement floodproofing \337\ or new
construction. Under the CISA, with the 26 percent expansion of the
floodplain, an additional 238 PA Category E projects (916 x 26
percent), for a total of 1,154 (916 + 238) projects, will be located in
the 1 percent annual chance floodplain or expanded FFRMS floodplain
over the 10-year period. FEMA randomly sampled 92 projects.\338\ Of the
92 projects, 47 projects, or 51 percent (47 / 92), meet the definition
of small entities under the Regulatory Flexibility Act.
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\337\ The cost of elevating an existing structure is
significantly higher than the cost of retrofitting the structure to
be floodproofed, so FEMA assumed that substantial improvement
projects would elect to floodproof rather than elevate.
\338\ The population of PA Category E projects includes all
``Public Buildings'' grants from 2013-2022 that received substantial
improvement floodproofing or new construction funding. Because of
the large population, FEMA used Slovin's formula and a 90 percent
confidence interval to determine the sample size. Slovin's formula:
n = N/(1+N*e [caret] 2). Therefore, 1,154/(1 + 1,154 x 0.1 [caret]
2) = 92 (rounded).
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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 above the flood level. FEMA will apply the FFRMS
to all actions subject to the FFRMS, and all structure elevation,
mitigation reconstruction, and dry floodproofing projects. As noted in
the Regulatory Impact Analysis, FEMA funded an average of about 50 HMA
elevation, mitigation reconstruction, and floodproofing structure
projects per year from 2020-2022.\339\ Unlike PA grants, most HMA
grants are for projects located in the floodplain, so for this
analysis, FEMA assumes that all HMA elevation, mitigation
reconstruction, and dry floodproofing projects are in the floodplain.
FEMA cannot estimate what projects might be considered actions subject
to the FFRMS in addition to structure elevation, mitigation
reconstruction, and dry floodproofing projects because HMA data does
not distinguish whether projects are considered new construction,
substantial improvement, or repairs to address substantial damage.
However, structure elevation, mitigation reconstruction, and dry
floodproofing are the primary HMA projects relating to flood
mitigation.\340\
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\339\ FEMA was unable to obtain 10-years of historical data from
2013-2022 for HMA due to changes within the program's database.
Therefore, FEMA used the best available data for years 2010 through
2019 instead.
\340\ The other project type related to flood mitigation is
acquisition. Generally, acquisition projects are for open space
purposes and restore the natural and beneficial functions of the
floodplain. Property acquisitions that result in relocated
structures would be subject to FFRMS elevation and floodproofing
requirements if the structure is relocated within the FFRMS
floodplain. HMA data does not break out relocation costs from
acquisition costs, so FEMA is unable to estimate additional
relocation expenses for acquisition projects.
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With the 26 percent expansion of the floodplain, an additional 13
HMA projects per year (50 x 26 percent), for a total of 63 (50 + 13)
projects, will be located in the 1 percent annual chance floodplain or
expanded FFRMS floodplain. Assuming 51 percent \341\ of HMA grant
recipients are small entities, approximately 32 (63 projects x 51
percent) small entities receiving HMA grants will be affected per year.
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\341\ 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.
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Facilities will not be required to floodproof or elevate but will
instead need to be made resilient to the appropriate FFRMS floodplain.
Resilience measures for facilities are highly project-specific, and
FEMA lacks data for such projects, making it exceedingly difficult to
estimate costs. FEMA could not estimate the cost of this rule on small
entities for facilities. However, FEMA conducted an analysis to
estimate the number of small entities for affected facility projects
based on historical data.
In an average year, FFRMS will impact about 1,036 PA Category C
[[Page 57033]]
facilities. Based on a random sample of 91 projects,\342\ FEMA found
that grant recipients for 71 of the projects, or 76.9 percent (70 /
91), met the definition of small entities under the Regulatory
Flexibility Act.
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\342\ Because of the large population, FEMA used Slovin's
formula and a 90 percent confidence interval to determine the sample
size. Slovin's formula: n = N/(1+N*e[caret]2). Therefore, 1,036/(1 +
1,036 x 0.1[caret]2) = 91 (rounded).
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In an average year, FFRMS will impact about 120 PA Category D
facilities. Based on a random sample of 55 projects,\343\ FEMA found
that grant recipients for 37 of the projects, or 67.3 percent (37 /
55), met the definition of small entities under the Regulatory
Flexibility Act.
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\343\ Because of the large population, FEMA used Slovin's
formula and a 90 percent confidence interval to determine the sample
size. Slovin's formula: n = N/(1+N*e[caret]2). Therefore, 120/(1 +
120 x 0.1[caret]2) = 55 (rounded).
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In an average year, FFRMS will impact about 208 PA Category F
facilities. Based on a random sample of 68 projects,\344\ FEMA found
that grant recipients for 55 of the projects, or 80.9 percent (55 /
68), met the definition of small entities under the Regulatory
Flexibility Act.
---------------------------------------------------------------------------
\344\ Because of the large population, FEMA used Slovin's
formula and a 90 percent confidence interval to determine the sample
size. Slovin's formula: n = N/(1+N*e[caret]2). Therefore, 208/(1 +
208 x 0.1[caret]2) = 68 (rounded).
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In an average year, FFRMS will impact about 314 PA Category G
facilities. Based on a random sample of 76 projects,\345\ FEMA found
that grant recipients for 40 of the projects, or 52.6 percent (40 /
76), met the definition of small entities under the Regulatory
Flexibility Act.
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\345\ Because of the large population, FEMA used Slovin's
formula and a 90 percent confidence interval to determine the sample
size. Slovin's formula: n = N/(1+N*e[caret]2). Therefore, 314/(1 +
314 x 0.1[caret]2) = 76 (rounded).
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In an average year, FFRMS will impact about 84 HMA grant recipients
that received FEMA funding per year for minor flood controls and
generator projects. Based on a random sample of 46 projects,\346\ FEMA
found that grant recipients for 19 of the projects, or 41.3 percent (19
/ 46), were small entities under the definition of small entities under
the Regulatory Flexibility Act.
---------------------------------------------------------------------------
\346\ Because of the large population, FEMA used Slovin's
formula and a 90 percent confidence interval to determine the sample
size. Slovin's formula: n = N/(1+N*e[caret]2). Therefore, 84/(1 + 84
x 0.1[caret]2) = 46 (rounded).
---------------------------------------------------------------------------
2.5 Description of the projected reporting, recordkeeping and other
compliance requirements of the 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 for the increased elevation or
floodproofing requirements of structures in the FFRMS floodplain will
be funded by FEMA through several grant programs. Small entities, like
all entities, will be subject to additional costs not covered by these
grants for the floodproofing, elevation of structures, and flood
resilience measures required by the rule. For the purposes of this
analysis, and based on historical data, FEMA presents the costs such
that all projects will choose to elevate because of the additional
level of safety that elevation provides over floodproofing and a
historically higher number of HMA projects that involved elevation as
opposed to floodproofing.\347\ FEMA uses an NFIP report to estimate the
cost of the elevation requirements.\348\ The report provides estimates
for the cost of elevating structures as a percentage of total
construction cost.
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\347\ According to historical HMA data, there have been an
average of 63 elevation projects and only 4 floodproofing projects
per year.
\348\ FEMA, ``2008 Supplement to the 2006 Evaluation of the
National Flood Insurance Program's Building Standards'' Table 3,
available at https://www.fema.gov/sites/default/files/2020-07/fema_nfip_2008_freeboard_report_0.pdf (last accessed Apr. 29, 2024).
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The cost of elevating an existing structure is considerably higher
than the cost of retrofitting the structure to be floodproofed.
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 existing 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. New buildings will be evaluated for both dry
floodproofing (preventing the intrusion of floodwaters into the
building by using a system of waterproofing and shields) and elevation
(constructing higher), while existing buildings will only be evaluated
for dry floodproofing.
As established above, FEMA estimates this rule will impact 47 small
entity PA Category E projects annually. Using CISA as the primary
approach, FEMA estimates that the total cost for the elevation and
floodproofing requirements of this rule for all PA Category E projects
will be between $10,434,180 ($104,341,798 / 10 years) and $14,497,988
($144,979,878 / 10 years) annually for 115 (1,154 PA Total FFRMS action
Category E projects / 10 years) projects annually. Therefore, each
project will cost between $90,732 ($10,434,180 / 115 projects) and
$126,078 ($14,497,988 / 115 projects). There is an average of 47 small
entity PA projects per year. Small entity projects will have a total
average expected cost between $4,264,404 ($90,732 x 47 small entities
PA projects) and $5,925,666 ($126,078 x 47 small entities PA projects)
per year. The historical average cost share for PA Category E projects
is 85.0 percent covered by FEMA and 15.0 percent covered by the
recipients, with the majority of recipients receiving a 75 percent or a
90 percent cost share, depending on the type of disaster declaration.
FEMA estimates that, for PA Category E projects, each small entity will
have an average expected cost (i.e., their portion of the cost share)
of between $13,610 ($90,732 x 15.0 percent) and $18,912 ($126,078 x
15.0 percent) per project.
As established above, FEMA estimates that this rule will affect
approximately 32 small HMA grant recipients per year. Using CISA as the
primary approach, FEMA estimates that the total 10-year cost for the
elevation and floodproofing requirements of this rule for HMA projects
will be $4,319,206 ($43,192,063 / 10 years) annually for 1,040 (10,398
HMA Total FFRMS action projects / 10 years) projects annually. There is
an average of 32 small entities HMA projects per year. The average HMA
project cost is $4,153 ($4,319,206 / 1,040 HMA projects) per project.
The cost-sharing arrangement for HMA is 75 percent Federal and 25
percent recipient, so HMA recipients will be required to fund 25
percent of the costs to comply with the requirements of the rule. Each
small entity cost share will have an average expected cost of $1,038
($4,153 x 25 percent).
Reporting and recordkeeping are not expected to change, with the
exception of minor changes to FEMA's Mitigation Grant Program/e-Grants
system. FEMA will continue to make the determination of whether a
project will take place in an FFRMS floodplain.
2.6 Description of the steps the agency has taken to minimize the
significant economic impact on small entities consistent with the
stated
[[Page 57034]]
objectives of applicable statutes, including a statement of the
factual, policy, and legal reasons for selecting the alternative
adopted in the final rule and why each one of the other significant
alternatives to the rule considered by the agency which affect the
impact on small entities was rejected.
The standards in this rule represent FEMA's efforts to implement
Executive Order 11988, as amended, which establishes executive branch-
wide policy in this area. Executive Order 13690 establishes the FFRMS.
The policies established in these EOs do not consider exempting small
entities from all or part of the standard; the purpose of the FFRMS is
to ensure that agencies expand management from the current base flood
level to a higher vertical elevation and corresponding horizontal
floodplain to address current and future flood risk and help ensure
that projects funded with taxpayer dollars last as long as intended.
Accordingly, the FFRMS will apply to all affected FEMA projects,
including small entities.
As discussed previously, most of the cost of the mitigation
standards required by this rule will be paid by FEMA in the form of
additional PA, IA, or HMA grants. Cost sharing is required for most
FEMA grant programs. For PA and HMA, affected small entities will be
required to pay the recipient portion of the cost share, which is 25
percent in most cases. There are, however, some exceptions and cost
shares can be waived or set at a different level by Congress for PA.
FEMA does not have the authority to adjust the cost share specifically
for small entities.
Executive Order 11988, as amended, allows several approaches to
determine the FFRMS floodplain. Section F of this Final Rule, FEMA's
Implementation of Executive Order 11988, as amended, and FFRMS,
describes the FFRMS approaches allowed by Executive Order 11988, as
amended, and FEMA's considerations when selecting between the FFRMS
approaches. FEMA will, in its accompanying policy, use the CISA as the
preferred approach. FEMA has chosen the CISA as its preferred approach
because it is the only one that uses the best available climate science
to help ensure projects are designed to meet current and future flood
risks unique to the location and thus provides the best overall
resilience, cost effectiveness, and equity. Accordingly, FEMA believes
its preferred approach will minimize the risk that affected small
entities incur more costs than necessary because of overprotection or
incur preventable costs from future damage because of under protection.
The CISA establishes the required vertical elevation and
corresponding horizontal floodplain, through the best-available,
actionable hydrologic and hydraulic data and methods that integrate
current and future changes in flooding based on climate science, in
accordance with the Revised Guidelines. When such data is not
available, this rule and supplementary policy direct the use of other
approaches depending on the criticality of the action. The rule also
requires the use of natural systems, ecosystem processes, and nature-
based approaches where possible.
The FFRMS is a flexible framework to increase resilience against
flooding and help preserve the natural and beneficial values of
floodplains. Incorporating the FFRMS into FEMA regulations will ensure
that FEMA expands flood risk management from the current base flood
elevation to a higher vertical elevation and corresponding horizontal
floodplain to address current and future flood risk and helps ensure
that projects funded with taxpayer dollars last as long as intended for
all applicants, including small entities. FEMA considered a more
protective approach for critical actions but did not select this
approach. FEMA could have chosen a more protective approach in which it
would determine the elevations established under CISA, FVA, and the
0.2PFA for critical actions and only allow the applicant to use the
highest of the three elevations. This approach would ensure that
applicants were protecting these critical assets at the highest level.
However, this approach may lead to overbuilding and not be the most
cost-effective or equitable approach for applicants including small
entities.
FEMA also considered a more protective approach for all actions but
did not select this approach. FEMA could have required use of the
highest standard for all actions, regardless of criticality. While this
approach would ensure that applicants, including small entities, were
building all actions to the most protective level, this approach would
likely lead to overbuilding and not be the most cost-effective,
equitable approach, particularly for non-critical actions.
Small entities affected by the rule, as with any entity affected by
the rule, will 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
FFRMS level in the floodplain, and the recipient has the ability to
relocate.
C. Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995, 2 U.S.C. 658, 1501-1504,
1531-1536, 1571, pertains to any rulemaking which is likely to result
in the promulgation of any rule that includes a Federal mandate that
may result in the expenditure by State, local, and Tribal governments,
in the aggregate, or by the private sector, of $100 million (adjusted
annually for inflation) or more in any one year. If the rulemaking
includes a Federal mandate, the Act requires an agency to prepare an
assessment of the anticipated costs and benefits of the Federal
mandate. The Act also pertains to any regulatory requirements that
might significantly or uniquely affect small governments. Before
establishing any such requirements, an agency must develop a plan
allowing for input from the affected governments regarding the
requirements.
FEMA has determined this rulemaking will not result in the
expenditure by State, Territorial, local, and Tribal governments, in
the aggregate, nor by the private sector, of $100,000,000 or more in
any one year as a result of a Federal mandate, and it will not
significantly or uniquely affect small governments.\349\ Therefore, no
actions are deemed necessary under the provisions of the Unfunded
Mandates Reform Act of 1995.
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\349\ FEMA expects that increased costs to applicants will be
minimal. For example, FEMA found that for a project with a 75% FEMA/
25% applicant cost share, the cost to an applicant to elevate a
structure above the BFE to meet FEMA's FFRMS requirements using the
FVA+2 (1.91 percent of construction cost) represented less than 0.5%
of the total project cost, or an average of an additional $4,775 in
applicant cost share on an original total project cost of
$1,000,000. See A Benefit Analysis of Increased Freeboard for Public
and Nonresidential Buildings in Riverine and Coastal Floodplains,
posted to the public docket of this rulemaking at https://www.regulations.gov/document/FEMA-2023-0026-0003.
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D. Paperwork Reduction Act 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 OMB control number. See 44 U.S.C. 3506,
3507. This final rule calls for no new collections of information under
the PRA. The final rule includes information currently collected by
FEMA and approved in OMB information collections 1660-0072 (FEMA
Mitigation Grant Programs) and 1660-0076 (Hazard Mitigation Grant
[[Page 57035]]
Program (HMGP) Application and Reporting). With respect to these
collections, this final rule will not impose any additional burden and
will not require a change to the forms, the substance of the forms, or
the number of recipients who would submit the forms to FEMA.
E. 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. See 5 U.S.C. 552a(a)(5). 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 completed a Privacy Threshold
Analysis for this rule. This rule is covered by the following PIAs:
DHS/FEMA/PIA-006 FEMA National Emergency Management Electronic Grants
System, DHS/FEMA/PIA-025-Hazard Mitigation Grant Program (HMGP) System,
DHS/FEMA/PIA-026 Operational Data Store and Enterprise Data Warehouse
PIA, and DHS/FEMA/PIA-031 Authentication and Provisioning Services
(APS). No updates to these PIAs are necessary. Further, this rule is
covered under the following System of Records Notices (SORNs): DHS/
FEMA-009 Hazard Mitigation, Disaster Public Assistance, and Disaster
Loan Programs, 79 FR 16015, Mar. 24, 2014; DHS/ALL-004 General
Information Technology Access Account Records System (GITAARS), 77 FR
70792, Nov. 27, 2012; and DHS/FEMA-008 Disaster Recovery Assistance
Files. This final rule will not create a new system of records, and no
updates to these SORNs are necessary.
F. 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. 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 reviewed this final rule under Executive Order 13175 and
determined that this rule would 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 IA, PA, and HMA programs, and grants processed by
FEMA's 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. FEMA's edits in this final
rule specifically provide for Indian Tribal government information as a
resource when making the floodplain determination under part 9,
consistent with comments received.
G. Executive Order 13132, Federalism
Executive Order 13132, ``Federalism,'' 64 FR 43255, August 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 determined this rulemaking 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 IA, PA, and HMA programs, and grants processed by
FEMA's 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 final 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.
H. National Environmental Policy Act of 1969 (NEPA)
Section 102 of NEPA (42 U.S.C. 4321 et seq.) requires Federal
agencies to evaluate the effects of a proposed major Federal action to
determine if it will significantly affect the human environment,
consider alternatives to the proposed action, provide public notice and
opportunity for comment, and properly document its analysis. See 40 CFR
parts 1501, 1506.6. DHS and its component agencies analyze proposed
actions to determine whether NEPA applies and, if so, what level of
analysis and documentation is required. 40 CFR 1501.3. DHS Directive
023-01, Rev. 01 and DHS Instruction Manual 023-01-001-01, Rev. 01
(Instruction Manual) establish the policies and procedures DHS and its
component agencies use to comply with NEPA and the Council on
Environmental Quality (CEQ) regulations for implementing the procedural
requirements of NEPA codified in 40 CFR parts 1500 through 1508. The
CEQ regulations allow
[[Page 57036]]
Federal agencies to establish in their NEPA implementing procedures
categories of actions (``categorical exclusions'') that normally do not
have a significant effect on the human environment. Categorically
excluded actions do not require preparation of an environmental
assessment or environmental impact statement. 40 CFR 1501.4,
1507.3(e)(2)(ii), 1508.1(d). The Instruction Manual, Appendix A, lists
the DHS categorical exclusions. Under DHS NEPA implementing procedures,
for an action to be categorically excluded, it must satisfy each of the
following conditions: (1) the entire action clearly fits within one or
more of the categorical exclusions; (2) the action is not a piece of a
larger action; and (3) no extraordinary circumstances exist that create
the potential for a significant environmental effect.
The final rule updates the Floodplain Management and Protection of
Wetland requirements to adopt the approaches outlined in Executive
Order 11988, as amended. This involves establishing the floodplain,
using the vertical elevation and corresponding horizontal extent, in
the 8-step decision-making process FEMA follows in applying Executive
Order 11988, as amended to its actions. FEMA's final rule amends
regulations codified at 44 CFR part 9 to revise the definition of the
floodplain based on the approaches in Executive Order 11988, as
amended, consisting of the Climate-Informed Science Approach (CISA),
the freeboard value approach (FVA), the 0.2-percent-annual-chance flood
approach (0.2PFA), and any other method identified in updates. The
final rule allows FEMA to select and prioritize among these approaches.
The rule revises the 8-step decision-making process to incorporate
consideration of the approaches in determining if the project is in the
floodplain. The rule also adds a requirement, where possible, to use
natural systems, ecosystem processes, and nature-based approaches in
the development of alternatives for Federal actions in a floodplain.
The result of redefining the floodplain and applying the approaches
outlined in Executive Order 11988, as amended, may be that structures
and facilities determined to be in the floodplain (``the FFRMS
floodplain'') would be designed to be more resilient, and more
structures and facilities--due to the corresponding horizontal
expansion of the floodplain--might be subject to an elevation
requirement and/or other mitigation measures. Further, with the
expanded horizontal floodplain, and application of the 8-step decision-
making process, which allows for Federal actions in the floodplain only
if there is no practicable alternative, it is possible some structures
or facilities that otherwise would be constructed in a high-risk flood
area, would be constructed elsewhere. This would result in better
protection of people and their property, the floodplain and
environment. When placing the action in the floodplain cannot be
avoided, implementing mitigation measures to actions in the FFRMS
floodplain will not only promote public safety and lessen flood risk,
but may also reduce the impact of the action on the floodplain, and
thereby contribute to preserving the natural and beneficial values of
the floodplain per the mandate in E.O. 11988. Similarly, the
requirement to use natural systems, ecosystem processes, and nature-
based approaches, where possible, in alternatives to the proposed
action, would contribute to restoring and preserving the natural and
beneficial values of the floodplain.
FEMA has determined NEPA applies to the final rule because it fits
the definition of a ``major federal action.'' CEQ's NEPA regulations
define ``major federal action'' to include ``new or revised agency
rules,'' regulations and policies. 40 CFR 1508.1(q)(2).
FEMA analyzed the final rule and finds it meets the three DHS
criteria for a categorical exclusion. FEMA has determined consistent
with the first criterion, the rule clearly fits within the categorical
exclusion found at A3 in the DHS Instruction Manual, Appendix A.
Categorical exclusion A3 states ``promulgation of rules, issuance of
rulings or interpretations, and the development and publications of
policies'' may be categorically excluded if such actions ``interpret or
amend an existing regulation without changing its environmental
effect.'' Instruction Manual, Appendix A, A3(d). The final rule may
result in requiring a structure or facility to have either higher
elevation or floodproofing, or more resilient design. The rule provides
for a higher resilience standard than the existing rule. It is possible
the expanded horizontal floodplain may discourage placing a ``Federal
action'' in the floodplain, as under the 8-step decision-making
process, an action may be located in the floodplain only if there is no
practicable alternative. In the event there is a practicable
alternative, and new construction is consequently located outside the
floodplain, the effect of the final rule would be to benefit the
environment by contributing to restoring and preserving the values of
the floodplain, as well as enhancing public safety. FEMA's
environmental and historic preservation review would ensure that the
agency takes into account other potential environmental impacts of
locating outside the floodplain.
If the Federal action must be located in the FFRMS floodplain, that
is, there is no practicable alternative, it will be subject to one of
the three approaches or a combination of them. FEMA's preferred
approach is CISA. If the CISA is used, it could result in an estimated
average of 5 feet of additional elevation for a structure (or
floodproofing to that level). FEMA prefers the CISA because it uses the
best actionable and available climate-informed science to determine the
floodplain is the most effective way to make the action resilient. If
the CISA data is not available and/or actionable, the final rule
provides alternatives for determining the floodplain for critical
actions and non-critical actions: for non-critical actions, the lesser
of the freeboard value approach (2 or 3 feet above base flood
elevation) or the 0.2 percent annual flood; and for critical actions,
the higher of the freeboard value approach or 0.2 percent annual flood.
Given the CISA or the combination of approaches may be used, the
potential for the change in elevation (or floodproofing) levels varies.
Further, if communities have stricter standards, which they are
required to apply, the communities will still apply that standard, and
thus, application of the FFRMS would not require a change in elevation.
If the ``Federal action'' is substantial improvement or addresses
substantial damage to a structure or facility, it would involve action
in a pre-built environment, with the only change being the structure or
facility might be elevated or floodproofed to the appropriate higher
level. If design rather than elevation, or in addition to elevation, is
used to comply with the FFRMS resilience standard, it is not
anticipated it will significantly impact the environment. As part of
implementing the FFRMS resilience standard, nature-based solutions are
required in alternatives to the proposed action, where possible. When
applied, they will benefit the environment by contributing to restoring
and preserving the natural and beneficial values of the floodplain.
None of the changes required by any of the combined FFRMS approaches
are anticipated to change the environmental effects of application of
the 8-step process. Categorical exclusion A3 applies to this regulatory
action, however any of the Federally funded actions to which the FFRMS
applies (new construction, substantial
[[Page 57037]]
improvement and repair of substantial damage) will undergo separate
NEPA analysis.
In addition to and apart from application of the decision process
in this final rule, all Federal actions, new construction, substantial
improvement, and actions addressing substantial damage, are subject to
NEPA review and must comply with NEPA requirements. Each Federal action
subject to the FFRMS will be evaluated on an individual basis under
NEPA and related environmental laws, regulations, and executive orders.
The Federal action will not be approved unless it meets all applicable
environmental and historic preservation requirements. Further, the
Federal actions subject to the proposed rule must comply with all
applicable floodplain requirements. See 44 CFR 9.11(d)(6) (referring to
requirement to be consistent with the criteria of the NFIP at 44 CFR
part 59 et seq. or any more restrictive Federal, State, or local
floodplain management standard).
FEMA therefore concludes the final rule clearly fits within
categorical exclusion A3. FEMA also finds the final rule meets the
second and third DHS criteria for applying a categorical exclusion. The
final rule is not a piece of a larger action, as it will be implemented
independently of other FEMA actions and is a separate action unto
itself. Furthermore, FEMA finds adopting the floodplain management and
protection approaches outlined in Executive Order 11988, as amended,
presents no extraordinary circumstances that increase the potential for
significant environmental effects to the environment. Accordingly, the
final rule is categorically excluded, and no further NEPA analysis or
documentation is required.
I. Executive Orders 12898 and 14096 on 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); and Executive Order 14096,
``Revitalizing Our Nation's Commitment to Environmental Justice for
All'' (88 FR 25251, Apr. 26, 2023), FEMA incorporates environmental
justice into its policies and programs. Executive Order 14096 charges
agencies to make achieving environmental justice part of their
missions, consistent with statutory authority, by identifying,
analyzing, and addressing disproportionate and adverse human health and
environmental effects and hazards of Federal activities, including
those related to climate change and cumulative impacts of environmental
and other burdens on communities with environmental justice concerns.
This final rule will not have a disproportionate and adverse human
health or environmental effect on communities with environmental
justice concerns. FEMA addressed specific comments related to
environmental justice above.
J. Executive Order 12630, Taking of Private Property
This rule will not affect 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 final rule 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 final rule 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 owners of
relevant intellectual property to agree 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 then-President Obama's Climate Action Plan,\350\
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.
---------------------------------------------------------------------------
\350\ 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 found at https://obamawhitehouse.archives.gov/sites/default/files/docs/cap_progress_report_final_w_cover.pdf (last
accessed Jan. 24, 2024).
---------------------------------------------------------------------------
N. Congressional Review of Agency Rulemaking
Under the Congressional Review Act (CRA), 5 U.S.C. 801-808, before
a rule can take effect, the Federal agency promulgating the rule must
submit to Congress and to the Government Accountability Office (GAO) a
copy of the rule; a concise general statement relating to the rule,
including whether it is a major rule; the proposed effective date of
the rule; a copy of any cost-benefit analysis; descriptions of certain
actions under the Regulatory Flexibility Act and the Unfunded Mandates
Reform Act; and any other relevant information or requirements under
any other Act and any executive orders. FEMA has submitted this rule to
the Congress and to GAO pursuant to the CRA. OMB has determined that
this rule is not a ``major rule'' within the meaning of the CRA.
List of Subjects in 44 CFR Part 9
Floodplains; Reporting and recordkeeping requirements.
For the reasons discussed in the preamble, the Federal Emergency
Management Agency (FEMA) is amending 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: 6 U.S.C. 101 et seq.; 42 U.S.C. 4001 et seq.; 42
U.S.C. 4321 et seq.; E.O. 11988 of May 24, 1977, 42 FR 26951, 3 CFR,
1977 Comp., p. 117; E.O. 11990 of May 24, 1977, 42 FR 26961, 3 CFR,
1977 Comp. p. 121; E.O. 13690, 80 FR 6425; E.O. 14030, 86 FR 27967.
0
2. Revise Sec. 9.1 to read as follows:
Sec. 9.1 Purpose.
This part sets forth the policy, procedure, and responsibilities to
implement and enforce relevant sections of the National Flood Insurance
Act of 1968, as amended, and the Flood Disaster Protection Act of 1973,
as
[[Page 57038]]
amended, 42 U.S.C. 4001 et seq., the National Environmental Policy Act
of 1969, 42 U.S.C. 4321 et seq., as amended, and other relevant
statutory authorities in conjunction with Executive Order 11988,
Floodplain Management, as amended, and Executive Order 11990,
Protection of Wetlands.
0
3. Amend Sec. 9.2 by revising paragraph (b) and adding paragraphs (c)
and (d) to read as follows:
Sec. 9.2 Policy.
* * * * *
(b) The Agency will provide leadership in floodplain management and
the protection of wetlands, informed by the best available and
actionable science, to bolster the resilience of communities and
Federal assets against the impacts of flooding, which are anticipated
to increase over time due to the effects of changing conditions which
adversely affect the environment, economic prosperity, public health
and safety, and national security.
(c) The Agency shall integrate the goals of the Orders to the
greatest possible degree into its procedures for implementing the
National Environmental Policy Act (42 U.S.C. 4321 et seq.).
(d) The Agency shall:
(1) Minimize the impact of floods on human health, safety, and
welfare;
(2) Avoid long- and short-term adverse impacts associated with the
occupancy and modification of floodplains and the destruction and
modification of wetlands;
(3) Avoid direct and indirect support of floodplain development and
new construction in wetlands wherever there is a practicable
alternative;
(4) Reduce the risk of flood loss;
(5) Promote the use of nonstructural flood protection methods to
reduce the risk of flood loss;
(6) Minimize the destruction, loss, or degradation of wetlands;
(7) Restore and preserve the natural and beneficial values served
by floodplains;
(8) Preserve and enhance the natural values of wetlands;
(9) Involve the public throughout the floodplain management and
wetlands protection decision-making process;
(10) Adhere to the objectives of the Unified National Program for
Floodplain Management; and
(11) Improve and coordinate the Agency's plans, programs,
functions, and resources so that the Nation may attain the widest range
of beneficial uses of the environment without degradation or risk to
health and safety.
0
4. Revise Sec. 9.3 to read as follows:
Sec. 9.3 Severability.
Any provision of this part held to be invalid or unenforceable as
applied to any action should be construed so as to continue to give the
maximum effect to the provision permitted by law, unless such holding
is that the provision of this part is invalid and unenforceable in all
circumstances, in which event the provision should be severable from
the remainder of this subpart and shall not affect the remainder
thereof.
0
5. Amend Sec. 9.4 by:
0
a. Adding in alphanumeric order definitions for ``0.2 percent annual
chance flood elevation'', ``0.2 percent annual chance floodplain'', ``1
percent annual chance flood elevation'', and ``1 percent annual chance
floodplain'';
0
b. Revising the definitions of ``Action'' and ``Actions Affecting or
Affected by Floodplains or Wetlands'';
0
c. Adding in alphabetical order a definition for ``Action subject to
the Federal Flood Risk Management Standard'';
0
d. Removing the definitions of ``Base Flood'' and ``Base Floodplain'';
0
e. Adding in alphabetical order a definition for ``Base flood
elevation'';
0
f. Revising the definitions of ``Coastal High Hazard Area'', ``Critical
Action'', and ``Emergency Actions'';
0
g. Adding in alphabetical order definitions for ``Federal Flood Risk
Management Standard (FFRMS)'', ``Federal Flood Risk Management Standard
(FFRMS) floodplain'', ``Federally funded project'', and ``FEMA
Resilience'';
0
h. Removing the definitions of ``FIA'' and ``Five Hundred Year
Floodplain'';
0
i. Revising the definition of ``Flood or flooding'';
0
j. Removing the definitions of ``Flood Fringe'', ``Flood Hazard
Boundary Map (FHBM)'', ``Flood Insurance Rate Map (FIRM)'', and ``Flood
Insurance Study (FIS)'';
0
k. Revising the definitions of ``Floodplain'', ``Functionally Dependent
Use'', and ``Mitigation'';
0
l. Removing the definition of ``Mitigation Directorate'';
0
m. Adding in alphabetical order definitions for ``National security'',
``Nature-based approaches'', ``Natural and beneficial values of
floodplains and wetlands'', and ``Natural features'';
0
n. Removing the definition of ``Natural Values of Floodplains and
Wetlands'';
0
o. Revising the definition of ``New Construction'';
0
p. Removing the definition of ``New Construction in Wetlands'';
0
q. Revising the definitions of ``Orders'', ``Practicable'',
``Regulatory Floodway'', ``Restore'', ``Structures'', and ``Substantial
Improvement'';
0
r. Adding in alphabetical order a definition for ``Support of
floodplain and wetland development'';
0
s. Removing the definition of ``Support''; and
0
t. Revising the definition of ``Wetlands''.
The additions and revisions read as follows:
Sec. 9.4 Definitions.
0.2 percent annual chance flood elevation means the elevation to
which floodwater is anticipated to rise during the 0.2 percent annual
chance flood (also known as the 500-year flood).
0.2 Percent annual chance floodplain means the area subject to
flooding by the 0.2 percent annual chance flood (also known as the 500-
year floodplain).
1 percent annual chance flood elevation--see the definition of base
flood elevation in this section.
1 percent annual chance floodplain means the area subject to
flooding by the 1 percent annual chance flood (also known as the 100-
year floodplain or base floodplain).
Action means
(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.
Actions affecting or affected by floodplains or wetlands means
actions which have the potential to result in the long- or short-term
impacts associated with:
(1) The occupancy or modification of floodplains, and the direct or
indirect support of floodplain development, or
(2) The destruction and modification of wetlands and the direct or
indirect support of new construction in wetlands.
Action subject to the Federal Flood Risk Management Standard
(FFRMS) means any action where FEMA funds are used for new
construction, substantial improvement, or to address substantial damage
to a structure or facility.
* * * * *
Base flood elevation means the elevation to which floodwater is
anticipated to rise during the 1 percent annual chance flood (also
known as the base flood or 100-year flood). The terms ``base flood
elevation,'' ``1 percent annual change flood elevation,'' and ``100-
year flood elevation'' are
[[Page 57039]]
synonymous and are used interchangeably.
Coastal high hazard area means an area of flood hazard extending
from offshore to the inland limit of a primary frontal dune along an
open coast and any other area subject to high velocity wave action from
storms or seismic sources.
Critical action means any 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 actions means emergency 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).
* * * * *
Federal Flood Risk Management Standard (FFRMS) means the Federal
flood risk management standard to be incorporated into existing
processes used to implement Executive Order 11988, as amended.
Federal Flood Risk Management Standard (FFRMS) floodplain means the
floodplain established using one of the approaches described in Sec.
9.7(c) of this part.
Federally funded project--see the definition of Action subject to
the Federal Flood Risk Management Standard in this section.
FEMA Resilience means the organization within FEMA that includes
the Federal Insurance and Mitigation Administration, the Grants Program
Directorate, and the National Preparedness Directorate.
* * * * *
Flood or flooding means the general and temporary condition of
partial or complete inundation of normally dry land areas from the
overflow of inland and/or tidal waters, and/or the unusual and rapid
accumulation of runoff of surface waters from any source. 0.2 percent
annual chance flood means the flood which has a 0.2 percent chance of
being equaled or exceeded in any given year (also known as the 500-year
flood). 1 percent annual chance flood means the flood which has a 1
percent chance of being equaled or exceeded in any given year (also
known as the 100-year flood or base flood). The terms ``base flood,''
``1 percent annual chance flood,'' and ``100-year flood'' are
synonymous and are used interchangeably.
* * * * *
Floodplain means any land area that is subject to flooding. The
term ``floodplain,'' by itself, refers to geographic features with
undefined boundaries. For the purposes of this part, the FFRMS
floodplain shall be established using one of the approaches described
in Sec. 9.7(c). See the definitions of 0.2 percent annual chance
floodplain, 1 percent annual chance floodplain, and Federal Flood Risk
Management Standard floodplain in this section.
* * * * *
Functionally dependent use means a use which cannot perform its
intended purpose unless it is located or carried out in close proximity
to water.
* * * * *
Mitigation means steps necessary to minimize the potentially
adverse effects of the proposed action, and to restore and preserve the
natural and beneficial floodplain values and to preserve and enhance
natural values of wetlands.
* * * * *
National security means:
(1) A condition that is provided by either:
(i) A military or defense advantage over any foreign nation or
group of nations;
(ii) A favorable foreign relations position; or
(iii) A defense posture capable of successfully resisting hostile
or destructive action from within or without, overt or covert.
(2) National security encompasses both national defense and foreign
relations of the United States.
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.
Natural and beneficial values of floodplains and wetlands means
features or resources that provide environmental and societal benefits.
Water and biological resources are often referred to as ``natural
functions of floodplains and wetlands.'' These values include, but are
not limited to:
(1) Water resource values (storing and conveying floodwaters,
maintaining water quality, and groundwater recharge);
(2) Living resource values (providing habitats and enhancing
biodiversity for fish, wildlife, and plant resources);
(3) Cultural resource values (providing open space, natural beauty,
recreation, scientific study, historic and archaeological resources,
and education; and
(4) Cultivated resource values (creating rich soils for
agriculture, aquaculture, and forestry).
Natural features means characteristics of a particular environment
(e.g., barrier islands, sand dunes, wetlands) that are created by
physical, geological, biological, and chemical processes and exist in
dynamic equilibrium. Natural features are self-sustaining parts of the
landscape that require little or no maintenance to continue providing
their ecosystem services (functions).
New construction means the construction of a new structure or
facility or the replacement of a structure or facility which has been
totally destroyed. New construction includes permanent installation of
temporary housing units. New construction in wetlands includes
draining, dredging, channelizing, filling, diking, impounding, and
related activities.
* * * * *
Orders means Executive Order 11988, Floodplain Management, as
amended, and Executive Order 11990, Protection of Wetlands.
Practicable means capable of being done within existing
constraints. The test of what is practicable depends on the situation
and includes consideration of all pertinent factors, such as natural
environment, social concerns, economic aspects, legal constraints, and
agency authorities.
* * * * *
Regulatory floodway means the area regulated by Federal, State, or
local requirements to provide for the discharge of the base flood so
the cumulative rise in the water surface is no more than a designated
amount above the base flood elevation.
Restore means to reestablish a setting or environment in which the
natural functions of the floodplain can operate.
[[Page 57040]]
Structure means a walled and roofed building, including a temporary
housing unit (manufactured housing) or a gas or liquid storage tank.
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 percent of the
pre-disaster 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. Substantial
improvement includes work to address substantial damage to a structure
or facility. If a facility is an essential link in a larger system, the
percentage of damage will be based on the cost of repairing the damaged
facility relative to 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.
* * * * *
Support of floodplain and wetland development means to, directly or
indirectly, encourage, allow, serve, or otherwise facilitate
development in floodplains or wetlands. Development means any man-made
change to improved or unimproved real estate, including but not limited
to new construction, mining, dredging, filling, grading, paving,
excavation or drilling operations, or storage of equipment or
materials. Direct support results from actions within floodplains or
wetlands, and indirect support results from actions outside of
floodplains or wetlands.
Wetlands means those areas which are inundated or saturated by
surface or ground water with a frequency sufficient to support, or that
under normal hydrologic conditions does or would support, a prevalence
of vegetation or aquatic life typically adapted for life in saturated
or seasonally saturated soil conditions, including wetlands areas
separated from their natural supply of water as a result of
construction activities such as structural flood protection methods or
solid-fill road beds, and activities such as mineral extraction and
navigation improvements. Examples of wetlands include, but are not
limited to, swamps, fresh and salt water marshes, estuaries, bogs,
beaches, wet meadows, sloughs, potholes, mud flats, river overflows,
and other similar areas. This definition is intended to be consistent
with the definition utilized by the U.S. Fish and Wildlife Service.
0
6. Amend Sec. 9.5 by revising paragraph (a)(3), the first sentence of
paragraph (b)(1), and paragraphs (c) through (g) to read as follows:
Sec. 9.5 Scope.
(a) * * *
(3) The amendments to this part made on September 9, 2024 apply to
new actions for which assistance is made available pursuant to
declarations under the Robert T. Stafford Disaster Relief and Emergency
Assistance Act of 1988 on or after September 9, 2024 and new actions
for which assistance is made available pursuant to notices of funding
opportunities published on or after September 9, 2024. For ongoing
actions for which assistance was made available prior to that date,
legacy program regulations (available at https://www.fema.gov) shall
apply.
(b) * * *
(1) Executive Order 11990, Protection of Wetlands, contains a
limited exemption not found in Executive Order 11988, Floodplain
Management, as amended. * * *
* * * * *
(c) Decision-making involving certain categories of actions. The
provisions set forth in this part are not applicable to the actions
enumerated in paragraphs (c)(1) through (10) of this section except
that the Regional Administrators shall comply with the spirit of
Executive Order 11988, as amended, and Executive Order 11990 to the
extent practicable. For any action which is excluded from the actions
enumerated below, the full 8-step process applies (see Sec. 9.6)
(except as indicated at paragraphs (d), (e), and (g) of this section
regarding other categories of partial or total exclusion). The
provisions of this part do not apply to the following (all references
are to the 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) Emergency Communications (section 418);
(4) Emergency Public Transportation (section 419);
(5) Fire Management Assistance (section 420), except for hazard
mitigation assistance under sections 404 and 420(d);
(6) 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;
(7) The following Federal Assistance to Individuals and Households
Program (section 408) categories of assistance:
(i) Financial assistance for temporary housing (section
408(c)(1)(A));
(ii) Lease and repair of rental units for temporary housing
(section 408(c)(1)(B)(ii)), except that Step 1 (Sec. 9.7) shall be
carried out;
(iii) Repairs (section 408(c)(2));
(iv) Replacement (section 408(c)(3)); and
(v) Financial assistance to address other needs (section 408(e)).
(8) Debris clearance and removal (sections 403 and 502), except
those grants involving non-emergency disposal of debris within a
floodplain or wetland (section 407);
(9) Actions under sections 406 and 407 of less than $18,000. Such
$18,000 amount will be adjusted annually to reflect changes in the
Consumer Price Index for All Urban Consumers published by the
Department of Labor;
(10) 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) Abbreviated decision-making process applying steps 1, 4, 5, and
8. The Regional Administrator shall apply steps 1, 4, 5, and 8 of the
decision-making process (Sec. Sec. 9.7, 9.10, and 9.11) to repairs
under section 406 of the Robert T. Stafford Disaster Relief and
Emergency Assistance Act of 1988, Public Law 93-288, as amended,
between $18,000 and $91,000. Such $18,000 and $91,000 amounts will be
adjusted annually to reflect changes in the Consumer Price Index for
All Urban Consumers published by the Department of Labor. For any
action which is excepted from the actions listed below (except as
otherwise provided in this section regarding other categories of
partial or total exclusion), the full 8-step process applies (See Sec.
9.6). The Regional Administrator may also require certain other
portions of the decision-making process to be carried out for
individual actions as is deemed necessary. Steps 1, 4, 5, and 8 of the
decision-making process apply to actions under section 406 of the
Stafford Act referenced above except for:
[[Page 57041]]
(1) Actions in a floodway or coastal high hazard area; or
(2) New construction, substantial improvement, or repairs to
address substantial damage of structures or facilities; or
(3) Facilities or structures which have previously sustained damage
from flooding due to a major disaster or emergency or on which a flood
insurance claim has been paid; or
(4) Critical actions.
(e) Abbreviated decision-making process applying steps 1, 2, 4, 5,
and 8. The Regional Administrator shall apply steps 1, 2, 4, 5, and 8
of the decision-making process (Sec. Sec. 9.7, 9.8, 9.10, and 9.11,
see Sec. 9.6) to certain actions under Section 406 of the Robert T.
Stafford Disaster Relief and Emergency Assistance Act of 1988, Public
Law 93-288, as amended, provided in paragraphs (e)(1) and (2) of this
section. Steps 3 and 6 (Sec. 9.9) shall be carried out except that
alternative sites outside the floodplain or wetland need not be
considered. After assessing impacts of the proposed action on the
floodplain or wetlands and of the site on the proposed action,
alternative actions to the proposed action, if any, and the ``no
action'' alternative shall be considered. The Regional Administrator
may also require certain other portions of the decision-making process
to be carried out for individual actions as is deemed necessary. For
any action which is excluded from the actions listed below (except as
otherwise provided in this section regarding other categories of
partial or total exclusion), the full 8-step process applies (see Sec.
9.6). The Regional Administrator shall apply steps 1, 2, 4, 5, and 8 of
the decision-making process (Sec. Sec. 9.7, 9.8, 9.10, and 9.11, see
Sec. 9.6) to:
(1) Replacement of building contents, materials, and equipment
(section 406).
(2) Repairs under section 406 to damaged facilities or structures,
except any such action for which one or more of the following is
applicable:
(i) FEMA estimated cost of repairs is more than 50 percent of the
estimated reconstruction cost of the entire facility or structure or is
more than $364,000. Such $364,000 amount will be adjusted annually to
reflect changes in the Consumer Price Index for All Urban Consumers
published by the Department of Labor; or
(ii) The action is located in a floodway or coastal high hazard
area; or
(iii) Facilities or structures which have previously sustained
structural damage from flooding due to a major disaster or emergency or
on which a flood insurance claim has been paid; or
(iv) The action is a critical action.
(f) Other categories of actions. Based upon the completion of the
8-step decision-making process (Sec. 9.6), the Regional Administrator
may find that a specific category of actions either offers no potential
for carrying out the purposes of the Orders and shall be treated as
those actions listed in paragraph (c) of this section, or has no
practicable alternative sites and shall be treated as those actions
listed in paragraph (e) of this section, or has no practicable
alternative actions or sites and shall be treated as those actions
listed in paragraph (d) of this section. This finding will be made in
consultation with FEMA Resilience and the Council on Environmental
Quality as provided in section 2(d) of Executive Order 11988, as
amended. Public notice of each of these determinations shall include
publication in the Federal Register and a 30-day comment period.
(g) The National Flood Insurance Program (NFIP). (1) FEMA
Resilience shall apply the 8-step decision-making process to program-
wide actions under the NFIP, including all regulations, procedures, and
other issuances making or amending program policy, and the
establishment of programmatic standards or criteria. FEMA Resilience
shall not apply the 8-step decision-making process to the application
of programmatic standards or criteria to specific situations. Thus, for
example, FEMA Resilience 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.
(2) The provisions set forth in this part are not applicable to the
actions enumerated below except that FEMA Resilience shall comply with
the spirit of the Orders to the extent practicable:
(i) The issuance of individual flood insurance policies and policy
interpretations;
(ii) The adjustment of claims made under the Standard Flood
Insurance Policy;
(iii) The hiring of independent contractors to assist in the
implementation of the NFIP;
(iv) The issuance of individual flood insurance maps, Map
Information Facility map determinations, and map amendments; and
(v) The conferring of eligibility for emergency or regular program
(NFIP) benefits upon communities.
0
7. Revise Sec. 9.6 to read as follows:
Sec. 9.6 Decision-making process.
(a) Purpose. This section sets out the floodplain management and
wetlands protection decision-making process to be followed by the
Agency in applying the Orders to its actions. The numbering of Steps 1
through 8 does not require that the steps be followed sequentially. As
information is gathered through the decision-making process, and as
additional information is needed, reevaluation of lower numbered steps
may be necessary.
(b) Decision-making process. Except as otherwise provided in Sec.
9.5 regarding categories of partial or total exclusion when proposing
an action, the Agency shall apply the 8-step decision-making process.
FEMA shall:
(1) Step 1. Determine whether the proposed action is located in a
floodplain and/or a wetland as established by Sec. 9.7; and whether it
has the potential to affect or be affected by a floodplain or wetland
(see Sec. 9.7);
(2) Step 2. Notify the public at the earliest possible time of the
intent to carry out an action in a floodplain or wetland, and involve
the affected and interested public in the decision-making process (see
Sec. 9.8);
(3) Step 3. Identify and evaluate practicable alternatives to
locating the proposed action in a floodplain or wetland (including
alternative sites, actions, natural features, nature-based approaches,
and the ``no action'' option) (see Sec. 9.9). If a practicable
alternative exists outside the floodplain or wetland FEMA must locate
the action at the alternative site.
(4) Step 4. Identify the potential direct and indirect impacts
associated with the occupancy or modification of floodplains and
wetlands and the potential direct and indirect support of floodplain
and wetland development that could result from the proposed action (see
Sec. 9.10);
(5) Step 5. Minimize the potential adverse impacts to or within
floodplains and wetlands and minimize support of floodplain and wetland
development identified under Step 4. Restore and preserve the natural
and beneficial values served by floodplains, and preserve and enhance
the natural and beneficial values served by wetlands. Integrate nature-
based approaches where appropriate (see Sec. 9.11);
(6) Step 6. Reevaluate the proposed action to determine first, if
it is still practicable in light of its exposure to flood hazards, the
extent to which it will aggravate hazards to others, and its potential
to disrupt floodplain and wetland values; and second, if alternatives
preliminarily rejected at Step 3 are practicable in light of the
information gained in Steps 4 and 5. FEMA shall not act in a floodplain
or wetland unless it is the only practicable location (see Sec. 9.9);
[[Page 57042]]
(7) Step 7. Prepare and provide the public with a finding and
public explanation of any final decision that the floodplain or wetland
is the only practicable alternative (see Sec. 9.12); and
(8) Step 8. Review the implementation and post-implementation
phases of the proposed action to ensure that the requirements stated in
Sec. 9.11 are fully implemented. Oversight responsibility shall be
integrated into existing processes.
0
8. Amend Sec. 9.7 by revising paragraphs (a), (b), (c), and (d)(3) and
(4) to read as follows:
Sec. 9.7 Determination of proposed action's location.
(a) Purpose. This section establishes Agency procedures for
determining whether any action as proposed is located in or affects a
floodplain established in paragraph (c) of this section or a wetland.
(b) Information needed. (1) The Agency shall obtain enough
information so that it can fulfill the requirements in this part to:
(i) Avoid Federal action in floodplain and wetland locations unless
they are the only practicable alternatives; and
(ii) Minimize harm to and within floodplains and wetlands.
(2) In all cases, FEMA shall determine whether the proposed action
is located in a floodplain or wetland. Information about the floodplain
as established by paragraph (c) of this section and the location of
floodways and coastal high hazard areas may also be needed to comply
with this part, especially Sec. 9.11.
(3) The following additional current and future flooding
characteristics may be identified by the Regional Administrator as
applicable:
(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.
(vi) Any other applicable flooding characteristics.
(c) Floodplain determination. In the absence of a finding to the
contrary, FEMA will determine that a proposed action involving a
facility or structure that has been flooded previously is in the
floodplain. In determining if a proposed action is in the floodplain:
(1) FEMA shall determine whether the action is an action subject to
the FFRMS as defined in Sec. 9.4.
(i) If the action is an action subject to the FFRMS, FEMA shall
establish the FFRMS floodplain area and associated flood elevation by
using the process specified in (c)(3) of this section and one of the
following approaches:
(A) Climate-Informed Science Approach (CISA): 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): 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;
(C) 0.2-Percent-Annual-Chance Flood Approach (0.2PFA): The 0.2
percent annual chance flood; or
(D) Any other method identified in an update to the FFRMS.
(ii) FEMA may select among and prioritize the approaches in this
paragraph (c)(1) by policy.
(iii) FEMA may provide an exception to using the FFRMS floodplain
and corresponding flood elevation for an action subject to the FFRMS
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, or where the action
is a mission-critical requirement related to a national security
interest or an emergency action.
(2) If the action is not an action subject to the FFRMS as defined
in Sec. 9.4, FEMA shall use, at a minimum:
(i) The 1 percent annual chance (base) floodplain and flood
elevation for non-critical actions; and
(ii) The 0.2 percent annual chance floodplain and flood elevation
for critical actions.
(3) FEMA shall establish the floodplain and corresponding elevation
using the best available information. The floodplain and corresponding
elevation determined using the best available information must be at
least as restrictive as FEMA's regulatory determinations under the NFIP
where such determinations are available. In obtaining the best
available information, FEMA may consider other FEMA information as well
as other available information, such as information from:
(i) Department of Agriculture: Natural Resources Conservation
Service, U.S. Forest Service;
(ii) Department of Defense: U.S. Army Corps of Engineers;
(iii) Department of Commerce: National Oceanic and Atmospheric
Administration;
(iv) Department of the Interior: Bureau of Land Management, Bureau
of Reclamation, National Park Service, U.S. Fish and Wildlife Service,
United States Geological Survey;
(v) Tennessee Valley Authority;
(vi) Department of Transportation;
(vii) Environmental Protection Agency;
(viii) General Services Administration;
(ix) Agencies of State, Regional, and Indian Tribal governments; or
(x) Local sources such as Floodplain Administrators, Regional Flood
Control Districts, or Transportation Departments.
(4) If the sources listed in paragraph (c)(3) of this section do
not have or know of the information necessary to comply with the
requirements in this part, the Regional Administrator may seek the
services of a professional registered engineer.
(5) If a decision involves an area or location within extensive
Federal or state holdings or a headwater area and FEMA's regulatory
determinations under the National Flood Insurance Program are not
available, the Regional Administrator shall seek information from the
land administering agency before information and/or assistance is
sought from the sources listed in paragraph (c)(3) of this section.
(d) * * *
(3) If the identified sources do not have adequate information upon
which to base the determination, the Agency shall carry out an on-site
analysis performed by a representative of the FWS or other qualified
individual for wetlands characteristics based on the definition of a
wetland in Sec. 9.4.
(4) If an action constitutes new construction and is in a wetland
but not in a floodplain, the provisions of this part shall apply. If
the action is not in a wetland, the Regional Administrator shall
determine if the action has the potential to result in indirect impacts
on wetlands. If so, all potential adverse impacts shall be minimized.
For actions which are in a wetland and the floodplain, completion of
the decision-making process is required. (See Sec. 9.6). In such a
case, the wetland will be considered as one of the natural and
beneficial values of the floodplain.
0
9. Amend Sec. 9.8 by revising paragraphs (a) and (c)(1), the first
sentence of
[[Page 57043]]
paragraph (c)(2), and paragraphs (c)(3) introductory text, (c)(3)(v),
and (c)(4) and (5) to read as follows:
Sec. 9.8 Public notice requirements.
(a) Purpose. This section establishes the initial notice procedures
to be followed when the Agency proposes any action in or affecting
floodplains or wetlands.
* * * * *
(c) * * *
(1) For an action for which an environmental impact statement is
being prepared, the Notice of Intent to File an EIS constitutes the
early public notice if it includes the information required under
paragraph (c)(5) of this section.
(2) For each action having national significance for which notice
is being provided, the Agency at a minimum shall provide notice by
publication in the Federal Register and shall provide notice by mail to
national organizations reasonably expected to be interested in the
action. * * *
(3) The Agency shall determine whether it has provided appropriate
notices, adequate comment periods, and whether to issue cumulative
notices (paragraphs (c)(4), (6), and (7) of this section) based on
factors which include, but are not limited to:
* * * * *
(v) Anticipated potential impact of the action.
(4) For each action having primarily local importance for which
notice is being provided, notice shall be made in accordance with the
criteria under paragraph (c)(3) of this section, and shall include, as
appropriate:
(i) Notice through the internet or another comparable method.
(ii) Notice to Indian tribes when effects may occur on
reservations.
(iii) Information required in the affected State's public notice
procedures for comparable actions.
(iv) Publication in local newspapers.
(v) Notice through other local media including newsletters.
(vi) Notice to potential interested community organizations.
(vii) Direct mailing to owners and occupants of nearby or affected
property.
(viii) Posting of notice on and off site in the area where the
action is to be located.
(ix) Public hearing.
(5) The notice shall:
(i) Describe the action, its purposes, and a statement of the
intent to carry out an action affecting or affected by a floodplain or
wetland;
(ii) Based on the factors in paragraph (c)(3) of this section,
include a map of the area and other identification of the floodplain
and/or wetland areas which is of adequate scale and detail;
alternatively, 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 or may provide a link to
access the map online;
(iii) Based on the factors in paragraph (c)(3) of this section,
describe the type, extent, and degree of hazard involved and the
floodplain or wetland values present; and
(iv) Identify the responsible official or organization for
implementing the proposed action, and from whom further information can
be obtained.
* * * * *
0
10. Amend Sec. 9.9 by:
0
a. Revising paragraphs (a)(1), (b)(2), and (c)(1) through (4);
0
b. Adding paragraph (c)(5);
0
c. Revising paragraphs (d), (e)(1)(i), (iii), and (iv), (e)(2)
introductory text, (e)(3) introductory text, and (e)(4); and
0
d. Lifting the suspension of paragraph (e)(6) and removing the
paragraph.
The revisions and additions read as follows:
Sec. 9.9 Analysis and reevaluation of practicable alternatives.
(a) * * * *
(1) This section expands upon the directives set out in Sec. 9.6
of this part in order to clarify and emphasize the requirements to
avoid floodplains and wetlands unless there is no practicable
alternative.
* * * * *
(b) * * *
(2) Alternative actions which serve essentially the same purpose as
the proposed action, but which have less potential to affect or be
affected by the floodplain or wetlands. In developing the alternative
actions, the Agency shall use, where possible, natural systems,
ecosystem processes, and nature-based approaches; and
* * * * *
(c) * * *
(1) Natural environment (including, but not limited to topography,
habitat, hazards, when applicable);
(2) Social concerns (including, but not limited to aesthetics,
historical and cultural values, land patterns, when applicable);
(3) Economic aspects (including, but not limited to costs of space,
technology, construction, services, relocation, when applicable);
(4) Legal constraints (including, but not limited to deeds and
leases, when applicable); and
(5) Agency authorities.
(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.
(2) If no practicable alternative exists outside the floodplain or
wetland, in order to carry out the action the floodplain or wetland
must itself be a practicable location in light of the review required
in this section.
(e) * * *
(1) * * *
(i) The action is still practicable at a floodplain or wetland
site, considering the flood risk and the ensuing disruption of natural
values;
* * * * *
(iii) The scope of the action can be limited to increase the
practicability of previously rejected non-floodplain or wetland sites
and alternative actions; and
(iv) Harm to or within the floodplain can be minimized using all
practicable means.
(2) Take no action in a floodplain unless the importance of the
floodplain site clearly outweighs the requirements to:
* * * * *
(3) Take no action in a wetland unless the importance of the
wetland site clearly outweighs the requirements to:
* * * * *
(4) In carrying out this balancing process, give the factors in
paragraphs (e)(2) and (3) of this section great weight.
* * * * *
0
11. Amend Sec. 9.10 by revising paragraph (a), the second sentence of
paragraph (b), and paragraphs (c) and (d) to read as follows:
Sec. 9.10 Identify impacts of proposed actions.
(a) This section ensures that the effects of proposed Agency
actions are identified.
(b) * * * Such identification of impacts shall be to the extent
necessary to comply with the requirements of this part to avoid
floodplain and wetland locations unless they are the only practicable
alternatives to minimize harm to and within floodplains and wetlands.
(c) This identification shall consider whether the proposed action
will result in an increase in the useful life of any structure or
facility in question, maintain the investment at risk and exposure of
lives to the flood hazard or forego an opportunity to restore the
natural and beneficial values served by floodplains or wetlands.
[[Page 57044]]
(d) In the review of a proposed or alternative action, the Regional
Administrator shall consider and evaluate: impacts associated with
modification of wetlands and floodplains regardless of its location;
additional impacts which may occur when certain types of actions may
support subsequent action which have additional impacts of their own;
adverse impacts of the proposed actions on lives and property and on
natural and beneficial floodplain and wetland values; and the three
categories of factors listed below:
(1) Flood hazard-related factors. These include, but are not
limited to, the factors listed in Sec. 9.7(b)(3);
(2) Natural values-related factors. These include, but are not
limited to: water resource values, as in storing and conveying
floodwaters, maintaining water quality, and groundwater recharge;
living resource values, as in providing habitats and enhancing
biodiversity for fish and wildlife and plant resources; cultural
resource values, as in providing open space, natural beauty,
recreation, scientific study, historical and archaeological resources,
and education; and cultivated resource values, as in creating rich
soils for agriculture, aquaculture, and forestry.
(3) Factors relevant to a proposed action's effects on the survival
and quality of wetlands. These include, but are not limited to: Public
health, safety, and welfare, including water supply, quality, recharge
and discharge; pollution; flood and storm hazards; and sediment and
erosion; maintenance of natural systems, including conservation and
long term productivity of existing flora and fauna, species and habitat
diversity and stability, hydrologic utility, fish, wildlife, timber,
and food and fiber resources; and other uses of wetlands in the public
interest, including recreational, scientific, and cultural uses.
0
12. Amend Sec. 9.11 by:
0
a. Revising paragraphs (a) and (c)(1);
0
b. Revising the first sentence of paragraph (d) introductory text and
revising paragraphs (d)(1) introductory text, (d)(2) through (4),
(d)(5) introductory text, and (d)(9);
0
c. Lifting the suspension of paragraph (e)(4) and removing paragraph
(e); and
0
d. Redesignating paragraph (f) as paragraph (e) and revising it.
The revisions read as follows:
Sec. 9.11 Mitigation.
(a) Purpose. This section expands upon the directives set out in
Sec. 9.6 of this part and sets out the mitigative actions required if
the preliminary determination is made to carry out an action that
affects or is in a floodplain or wetland.
* * * * *
(c) * * *
(1) Potential harm to lives and the investment from flooding based
on flood elevations as established by Sec. 9.7(c);
* * * * *
(d) Minimization standards. 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). * * *
(1) There shall be no new construction or substantial improvement
in a floodway and no new construction in a coastal high hazard area,
except for:
* * * * *
(2) For a structure which is a functionally dependent use or which
facilitates an open space use, the following applies: Any construction
of a new or substantially improved structure in a coastal high hazard
area must be 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 floodplain as established by Sec.
9.7(c). The structure shall be anchored so as to withstand velocity
waters and hurricane wave wash.
(3) The following applies to 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 elevation of the floodplain as established
by Sec. 9.7(c).
(ii) If the subject structure is nonresidential, instead of
elevating the structure, FEMA may approve the design of the structure
and its attendant utility and sanitary facilities so that the structure
is watertight below the flood elevation 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.
(iii) The provisions of paragraphs (d)(3)(i) and (ii) of this
section do not apply to the extent that FEMA Resilience has granted an
exception under Sec. 60.6(b) of this chapter, or the community has
granted a variance which the Regional Administrator determines is
consistent with Sec. 60.6(a) of this chapter. In a community which
does not have a FEMA regulatory product in effect, FEMA may approve a
variance from the standards of paragraphs (d)(3)(i) and (ii) of this
section, after compliance with the standards of Sec. 60.6(a).
(4) There shall be no encroachments, including but not limited to
fill, new construction, substantial improvements of structures or
facilities, or other development within a designated regulatory
floodway that would result in any increase in flood elevation within
the community during the occurrence of the 1 percent annual chance
(base) flood discharge. Until a regulatory floodway is designated, no
fill, new construction, substantial improvements, or other development
shall be permitted within the 1 percent annual chance (base) floodplain
unless it is demonstrated that the cumulative effect of the proposed
development, when combined with all other existing and anticipated
development, will not increase the water surface elevation of the 1
percent annual chance (base) flood more than the amount designated by
the NFIP or the community, whichever is most restrictive.
(5) Even if an action is a functionally dependent use or
facilitates open space uses (under paragraph (d)(1) or (2) of this
section) and does not increase flood heights (under paragraph (d)(4) of
this section), such action may only be taken in a floodway or coastal
high hazard area if:
* * * * *
(9) In the replacement of building contents, materials and
equipment, the Regional Administrator shall require as appropriate,
flood proofing and/or elevation 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 by Sec.
9.7(c).
(e) Restore and preserve. (1) For any action taken by the Agency
which affects the floodplain or wetland and which has resulted in, or
will result in, harm to the floodplain or wetland, the Agency shall act
to restore and preserve the natural and beneficial values served by
floodplains and wetlands.
(2) Where floodplain or wetland values have been degraded by the
proposed action, the Agency shall identify, evaluate, and implement
measures to restore the values.
(3) If an action will result in harm to or within the floodplain or
wetland, the Agency shall design or modify the action to preserve as
much of the natural and beneficial floodplain and wetland values as is
possible.
[[Page 57045]]
0
13. Amend Sec. 9.12 by:
0
a. Redesignating paragraphs (d) introductory text and (d)(1) through
(6) as paragraphs (d)(1) introductory text and (d)(1)(i) through (vi),
respectively; and
0
c. Designate the undesignated text after newly redesignated paragraph
(d)(1)(vi) as paragraph (d)(2) and revise it.
The revision reads as follows:
Sec. 9.12 Final public notice.
* * * * *
(d) * * *
(2) When a damaged structure or facility is already being repaired
by the State or local government at the time of the project
application, the requirements of Steps 2 and 7 (Sec. 9.8 and this
section) may be met by a single notice. Such notice shall contain all
the information required by both sections.
0
14. Revise Sec. 9.13 to read as follows:
Sec. 9.13 Particular types of temporary housing.
(a) This section sets forth the procedures whereby the Agency will
provide certain specified types of temporary housing at a private,
commercial, or group site.
(b) Prior to providing the temporary housing described in paragraph
(a) of this section, the Agency shall comply with the provisions of
this section. For temporary housing not enumerated above, the full 8-
step process (see Sec. 9.6) applies.
(c) The actions described in paragraph (a) of this section are
subject to the following decision-making process:
(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.
(2) No temporary housing unit may be placed on a site in a floodway
or coastal high hazard area.
(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. The
following factors shall be substituted for the factors in Sec. 9.9(c)
and (e)(2) through (4):
(i) Speedy provision of temporary housing;
(ii) Potential flood risk to the temporary housing occupant;
(iii) Cost effectiveness;
(iv) Social and neighborhood patterns;
(v) Timely availability of other housing resources; and
(vi) Potential harm to the floodplain or wetland.
(4) For temporary housing units at group sites, Step 4 of the 8-
step process shall be applied in accordance with Sec. 9.10.
(5) An individual or family shall not be housed in a floodplain or
wetland (except in existing resources) unless the Regional
Administrator has complied with the provisions of Sec. 9.11 to
minimize harm to and within floodplains and wetlands. The following
provisions shall be substituted for the provisions of Sec. 9.11(d) for
temporary housing units:
(i) No temporary housing unit may be placed unless it is elevated
to the fullest extent practicable up to the base flood elevation and
adequately anchored.
(ii) No temporary housing unit may be placed if such placement is
inconsistent with the criteria of the NFIP (44 CFR parts 59 and 60) or
any more restrictive Federal, State, or local floodplain management
standard. Such standards may require elevation to the base flood
elevation in the absence of a variance.
(iii) Temporary housing units shall be elevated on open works
(walls, columns, piers, piles, etc.) rather than on fill where
practicable.
(iv) To minimize the effect of floods on human health, safety and
welfare, the Agency shall:
(A) Where appropriate, integrate all of its proposed actions in
placing temporary housing units for temporary housing in floodplains
into existing flood warning or preparedness plans and ensure that
available flood warning time is reflected;
(B) Provide adequate access and egress to and from the proposed
site of the temporary housing unit; and
(C) Give special consideration to the unique hazard potential in
flash flood and rapid-rise areas.
(6) FEMA shall comply with Step 2 Early Public Notice (Sec.
9.8(c)) and Step 7 Final Public Notice (Sec. 9.12). In providing these
notices, the emergency nature of temporary housing shall be taken into
account.
(7) FEMA shall carry out the actions in accordance with Step 8,
ensuring the requirements of this section and the decision-making
process are fully integrated into the provision of temporary housing.
(d) The following applies to the permanent installation of a
temporary housing unit as part of a sale or disposal of temporary
housing:
(1) FEMA shall not permanently install temporary housing units in
floodways or coastal high hazard areas. FEMA shall not permanently
install a temporary housing unit in floodplains as established by
9.7(c) or wetlands unless there is full compliance with the 8-step
process. Given the vulnerability of temporary housing units 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
temporary housing unit for permanent housing; and
(ii) A compelling requirement to permanently install the unit in a
floodplain.
(2) FEMA shall not permanently install temporary housing units in
the floodplain as established by Sec. 9.7(c) unless they are or will
be elevated at least to the elevation of the floodplain as established
by Sec. 9.7(c).
(3) The Regional Administrator shall notify FEMA Resilience of each
instance where a floodplain location has been found to be the only
practicable alternative for permanent installation of a temporary
housing unit.
0
15. Amend Sec. 9.14 by revising paragraphs (a), (b)(4), (5), and (6),
(b)(7)(ii) and (iii), and (b)(9) to read as follows:
Sec. 9.14 Disposal of Agency property.
(a) This section sets forth the procedures whereby the Agency shall
dispose of property.
(b) * * *
(4) Identify the potential impacts and support of floodplain and
wetland development associated with the disposal of the property in
accordance with Sec. 9.10;
(5) Identify the steps necessary to minimize, restore, preserve and
enhance in accordance with Sec. 9.11. For disposals, this analysis
shall address all four of these components of mitigation where
unimproved property is involved, but shall focus on minimization
through elevation or floodproofing and restoration of natural values
where improved property is involved;
(6) Reevaluate the proposal to dispose of the property in light of
its exposure to the flood hazard and its natural values-related
impacts, in accordance with Sec. 9.9. This analysis shall focus on
whether it is practicable in light of the findings from Sec. Sec. 9.10
and 9.11 to dispose of the property, or whether it must be retained. If
it is determined that it is practicable to dispose of the property,
this analysis shall identify the practicable alternative that best
achieves the Agency's mitigation responsibility.
(7) * * *
(ii) Properties located inside the floodplain but outside of the
floodway and the coastal high hazard area; and
(iii) Properties located in a floodway, regulatory floodway, or
coastal high hazard area.
* * * * *
[[Page 57046]]
(9) The Agency shall ensure that the applicable mitigation
requirements are fully implemented in accordance with Sec. 9.11(c).
* * * * *
0
16. Amend Sec. 9.16 by revising paragraphs (b) introductory text,
(b)(2) through (5), and (c) to read as follows:
Sec. 9.16 Guidance for applicants.
* * * * *
(b) This shall be accomplished primarily through amendment of all
Agency instructions to applicants, and also through contact made by
agency staff during the normal course of their activities, to fully
inform prospective applicants of:
* * * * *
(2) The decision-making process to be used by the Agency in making
the determination of whether to take an action in or affecting
floodplains or wetlands as set out in Sec. 9.6;
(3) The practicability analysis as set out in Sec. 9.9;
(4) The mitigation responsibilities as set out in Sec. 9.11;
(5) The public notice and involvement process as set out in
Sec. Sec. 9.8 and 9.12; and
* * * * *
(c) Guidance to applicants shall be provided, where possible, prior
to the time of application in order to minimize potential delays in the
Agency's processing of the application due to failure of applicants to
follow the provisions in this part.
0
17. Amend Sec. 9.17 by revising paragraphs (a), (b) introductory text,
(b)(3) through (5), (c), and (d) to read as follows:
Sec. 9.17 Instructions to applicants.
(a) Purpose. 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. This section provides
notice to applicants for Agency assistance of both the criteria that
FEMA is required to follow, and the applicants' responsibilities under
this part.
(b) Responsibilities of applicants. Based upon the guidance
provided by the Agency under Sec. 9.16, the guidance included in the
U.S. Water Resources Council's Guidelines for Implementing Executive
Order 11988, Floodplain Management, and Executive Order 13690,
Establishing a Federal Flood Risk Management Standard and a Process for
Further Soliciting and Considering Stakeholder Input, and based upon
the provisions of the Orders and this part, applicants for Agency
assistance shall recognize and reflect in their application:
* * * * *
(3) The practicability analysis as set out in Sec. 9.9;
(4) The mitigation responsibilities as set out in Sec. 9.11;
(5) The public notice and involvement process as set out in
Sec. Sec. 9.8 and 9.12; and
* * * * *
(c) Provision of supporting information. Applicants for Agency
assistance may be required to provide supporting information relative
to the various responsibilities set out in paragraph (b) of this
section as a prerequisite to the approval of their applications.
(d) Approval of applicants. Applications for Agency assistance
shall be reviewed for compliance with the provisions in this part in
addition to the Agency's other approval criteria.
0
18. Amend Sec. 9.18 by revising paragraph (a)(1), the second sentence
of paragraph (b)(1), and the first sentence of (b)(2) to read as
follows:
Sec. 9.18 Responsibilities.
(a) * * *
(1) Implement the requirements of the Orders and this part. Under
Sec. Sec. 9.2 and 9.6 through 9.13 and 9.15 where a direction is given
to the Agency, it is the responsibility of the Regional Administrator.
* * * * *
(b) * * *
(1) * * * When a decision of a Regional Administrator relating to
disaster assistance is appealed, FEMA Resilience may make
determinations under this part 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
19. Remove appendix A to part 9.
Deanne Criswell,
Administrator, Federal Emergency Management Agency.
[FR Doc. 2024-15169 Filed 7-10-24; 8:45 am]
BILLING CODE 9111-66-P
