View Rule

View EO 12866 Meetings Printer-Friendly Version     Download RIN Data in XML

DHS/FEMA RIN: 1660-AA85 Publication ID: Fall 2016 
Title: Updates to Floodplain Management and Protection of Wetlands Regulations to Implement Executive Order 13690 and the Federal Flood Risk Management Standard  
Abstract:

The Federal Emergency Management Agency (FEMA) proposes to amend its regulations at 44 CFR part 9 "Floodplain Management and Protection of Wetlands” to implement Executive Order 13690, which establishes the Federal Flood Risk Management Standard (FFRMS).  44 CFR part 9 describes FEMA’s process for determining whether the proposed location for an action falls within a floodplain.  In addition, for those projects that would fall within a floodplain, part 9 describes FEMA’s framework for deciding whether and how to complete the action in the floodplain, in light of the risk of flooding.  Consistent with Executive Order 13690 and the FFRMS, the proposed rule would change how FEMA defines a "floodplain” with respect to certain actions.  Additionally, under the proposed rule, FEMA would use natural systems, ecosystem process, and nature-based approaches, where practicable, when developing alternatives to locating a proposed action in the floodplain.

 

 
Agency: Department of Homeland Security(DHS)  Priority: Other Significant 
RIN Status: Previously published in the Unified Agenda Agenda Stage of Rulemaking: Final Rule Stage 
Major: No  Unfunded Mandates: No 
EO 13771 Designation: uncollected 
CFR Citation: 44 CFR 9   
Legal Authority: E.O. 11988, as amended    E.O. 13690   
Legal Deadline:  None

Statement of Need:

It is the policy of the United States to improve the resilience of communities and Federal assets against the impacts of flooding. These impacts are anticipated to increase over time due to the effects of climate change and other threats.  Losses caused by flooding affect the environment, our economic prosperity, and public health and safety, each of which affects our national security.

 

The Federal Government must take action, informed by the best-available and actionable science, to improve the Nation's preparedness and resilience against flooding.  Executive Order 11988 of May 24, 1977, Floodplain Management; requires executive departments and agencies (agencies) to 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.  FEMA has implemented Executive Order 11988 through its regulations in 44 CFR Part 9.

 

On January 30, 2015, the President issued Executive Order 13690, Establishing a Federal Flood Risk Management Standard (FFRMS) and a Process for Further Soliciting and Considering Stakeholder Input.  Executive Order 13690 amended Executive Order 11988 and established the FFRMS.  The FFRMS is a flexible framework to increase resilience against flooding and help preserve the natural values of floodplains.  Under the FFRMS, an agency may establish the floodplain for Federally Funded Projects using any of the following approaches:  (1) Climate-Informed Science Approach (CISA):  Utilizing the best-available, actionable hydrologic and hydraulic data and methods that integrate current and future changes in flooding based on climate science; (2) Freeboard Value Approach (FVA):  Freeboard (base flood elevation + X, where X is 3 feet for critical actions and 2 feet for other actions); (3) 0.2 percent annual chance Flood Approach (0.2PFA):  0.2 percent annual chance flood (also known as the 500-year flood); or (4) the elevation and flood hazard area that result from using any other method identified in an update to the FFRMS.

 

When Executive Order 13690 was issued, FEMA evaluated the application of Executive Order 13690 and the FFRMS with respect to its existing authorities and programs.  The FFRMS establishes a flexible standard to improve resilience against the impact of flooding to design for the intended life of the Federal investment.  FEMA supports this principle.  With more than $260 billion in flood damages across the Nation since 1980, it is necessary to take action to responsibly use Federal funds, and FEMA must ensure it does not needlessly make repeated Federal investments in the same structures after flooding events.  In addition, the FFRMS will help support the thousands of communities across the Country that have strengthened their State and local floodplain management codes and standards to ensure that infrastructure and other community assets are resilient to flood risk.  FEMA recognizes that the need to make structures resilient also requires a flexible approach to adapt for the needs of the Federal agency, local community, and the circumstances surrounding each project or action.    

Summary of the Legal Basis:

Alternatives:

FEMA proposes to use the FFRMS-FVA to establish the floodplain for non-critical actions.  For critical actions, FEMA would allow the use of the FFRMS-FVA floodplain or the FFRMS-CISA, but only if the elevation established under the FFRMS-CISA is higher than the elevation established under the FFRMS-FVA. 

 

FEMA considered proposing the use of the FFRMS-CISA instead of FFRMS-FVA to reflect the FFRMS's designation of the FFRMS-CISA as the preferred approach and to reflect that the FFRMS-FVA sets a general level of protection, whereas FFRMS-CISA uses a more site-specific approach to predict flood risk based on future conditions. 

 

FEMA also considered whether it should alter its proposal for use of the FFRMS-CISA in relation to the FFRMS-FVA (or FFRMS-0.2PFA).  FEMA could choose a more protective approach in which it would determine the elevations established under FFRMS-CISA, FFRMS-FVA and the FFRMS-0.2PFA for critical actions and only allow the applicant to use the highest of the three elevations.  This approach would ensure that applicants were building to the most protective level, would avoid potential inconsistencies with FEMA's policy to encourage adoption of freeboard standards by local communities, and would prevent a scenario where an applicant was allowed to build to a lower elevation than previously required for critical actions under FEMA's implementation of Executive Order 11988.   

 

Also alternatively, FEMA could choose to allow use of the FFRMS-CISA, even if the resulting elevation is lower than the application of the FFRMS-FVA.  This approach would give FEMA and its grantees more flexibility in implementing the standard, would enable FEMA and its grantees to build to an elevation based on the best available science taking criticality into account, and would provide a pathway to relief for those areas that experience declining flood risks.

Anticipated Costs and Benefits:

The anticipated costs of the proposed rule would be from FEMA’s Individual Assistance, Public Assistance, and Hazard Mitigation Assistance grant programs, as well as administrative costs.  FEMA expects minimal costs associated with its Grants Program Directorate and Integrated Public Alert Warning System programs because these programs do not fund new construction or substantial improvement projects as defined in 44 CFR part 9.  These projects are also by nature, typically resilient from flooding.  FEMA facilities may also be subject to additional requirements due to the implementation of the proposed rule.

 

FEMA estimates that the total additional grants costs as a result of the proposed rule would be between $906,696 and $7.8 million per year for FEMA and between $301,906 and $2.6 million per year for grant recipients due to the increased elevation or floodproofing requirements of FEMA Federally Funded Projects.

 

In addition, FEMA expects to incur some administrative costs as a result of this proposed rule.  FEMA estimates initial training costs of around $100,000 the first two years after the rule is implemented, and administrative and training costs of around $16,000 per year thereafter. 

 

FEMA estimates that the total annual cost of this rule after year two would be between $6.1 million and $39.5 million.

 

FEMA estimates the quantified cost of this proposed rule over the next 10 years would range between $60.1 million and $394.7 million.  The present value (PV) of these estimated costs using a 7 percent discount rate would range between $42.9 million and $277.3 million.  The PV using a 3 percent discount rate would range between $52.0 million and $336.7 million.  These costs would be split between FEMA (75 percent) and recipients (25 percent) of FEMA grants in the floodplain. 

 

FEMA anticipates that the benefits of the proposed rule would justify the costs.  FEMA is has provided qualitative benefits, including the reduction in damage to properties and contents from future floods, potential lives saved, public health and safety benefits, reduced recovery time from floods, and increased community resilience to flooding. 

 

FEMA believes this proposed rule would result in savings in time and money from a reduced recovery period after a flood and increased safety of individuals.  Generally, if properties are protected, there would be less damage, resulting in less cleanup time.  In addition, higher elevations help to protect people, leading to increased safety.  FEMA is unable to quantify these benefits, but improving the resiliency of bridges has significant qualitative benefits, including:  protecting evacuation and escape routes; limiting blockages of floodwaters passing under the bridge that may lead to more severe flooding upstream; and, avoiding the cost of replacing the bridge again if it is damaged during a subsequent flood.  Any estimates of these savings would be dependent on the specific circumstances and FEMA is not able to provide a numeric value on these savings.

Risks:

Timetable:
Action Date FR Cite
NPRM  08/22/2016  81 FR 57401   
NPRM Comment Period End  10/21/2016 
Final Rule  01/00/2017 
Additional Information: Docket ID FEMA-2015-0006
Regulatory Flexibility Analysis Required: Yes  Government Levels Affected: Federal, Local, State, Tribal 
Small Entities Affected: Governmental Jurisdictions, Organizations  Federalism: No 
Included in the Regulatory Plan: Yes 
RIN Information URL: www.regulations.gov   Public Comment URL: www.regulations.gov  
RIN Data Printed in the FR: Yes 
Agency Contact:
Kristin Fontenot
Office of Environmental and Historic Preservation
Department of Homeland Security
Federal Emergency Management Agency
400 C Street SW,
Washington, DC 20472
Phone:202 646-2741
Email: kristin.fontenot@fema.dhs.gov