Vol. 23, No. 2 April 16, 2015

New Floodplain Rules Proposed


President Obama’s new Executive Order 13690 (EO 13690) calls for the creation of a new flood risk reduction standard for federally funded projects in an effort to improve the Nation’s resilience to current and future flood risks. Although the intent is to address requirements for projects that are funded with taxpayer dollars, the supporting language may result in any project involving federal action, including federal permitting (i.e wetland permits) or review by the Federal Emergency Management Agency (FEMA), having to meet higher flood resiliency standards. FEMA is soliciting public comments through May 6, 2015, to provide input on the draft guidelines for implementing these new standards. The National Association of Home Builders (NAHB) is extremely concerned about these proposed standards - as detailed in their recent newsletter.

The National Flood Insurance Program (NFIP) was created in response to the National Flood Insurance Act of 1968, and has two main goals:

  1. to make flood insurance available in communities that adopt and enforce floodplain management standards, and
  2. to map flood hazard areas in participating communities, which helps the communities to manage development within and adjacent to those areas, and to establish flood insurance rates.

On May 24, 1977, President Carter released Executive Order 11988 (EO 11988) aimed at avoiding adverse impacts associated with encroachments into regulatory floodplains. EO 11988 charged Federal agencies to provide leadership 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. The 1977 Executive Order required all Federal agencies to encourage and provide appropriate guidance to applicants to evaluate the effects of their proposed activities in floodplains prior to submitting applications for Federal licenses, permits, loans or grants and that all Federal agencies were required to issue or amend floodplain management regulations and procedures to comply with the Order. In addition, EO 11988 defined a “floodplain” as the following:

The term “floodplain” shall mean the lowland and relatively flat areas adjoining inland and coastal waters including floodprone areas of offshore islands, including at a minimum, that area subject to a one percent or greater chance of flooding in any given year [i.e., 100-year flood].

In February 1978, the Water Resources Council (WRC) issued “Floodplain Management Guidelines for Implementing Executive Order 11988” (1978 Guidelines). This document provided an analysis and interpretation of EO 11988, definition of terms, and an eight-step decision making process to be utilized by all Federal agencies for carrying out the directives of the Order, all of which either remain effective today or are amended by the new Executive Order.

In 1983, the Interagency Task Force on Floodplain Management, chaired by FEMA, published “Further Advice on Executive Order 11988 – Floodplain Management”, which was intended to be utilized by Federal agencies and local governments in administering programs that require compliance with EO 11988. This document provided clarification regarding proposed actions involving regulatory programs and permitting actions stating that, “The Executive Order is primarily concerned with those regulatory programs where the proposed action can be identified with specific sites. Regulatory programs dealing with products and non-site specific activities are generally not affected by the Executive Order.” Additionally, the document provides guidance regarding Section 404 Clean Water Act permitting, as follows:

“The Corps of Engineers regulatory program is used as an example of a site specific program that is subject to the Executive Order requirements. This program regulates work within as well as the discharge of dredge or fill material into the waters of the United States. The requirements of NEPA, CZMA, and CWA are integrated into this permitting program. The decision making process is based on a determination of public interest. A permit will be granted unless its issuance is found to be contrary to the public interest. The permitting process incorporates an intensive public involvement program including issuance of public notices.”

The Need for Change
After the devastating hurricanes of Katrina and Sandy in the past decade, FEMA finds itself approximately $24 billion in debt and in need for both flood insurance reform and improved resiliency in their disaster recovery efforts. The public is becoming increasingly aware and concerned about government spending on disasters. An accumulation of evidence is mounting proving that levels have been rising and continue to rise, and 24-hour rainfall totals (table for Metropolitan DC vicinity) published by the National Weather Service and utilized in engineering calculations for computing flood depths, are generally higher now (as shown in NOAA Atlas 14, compared to those previously published in NWS Technical Paper No. 40). Compelled by our recent flood disaster history, and data supporting climate change and sea-level rise, President Obama issued Executive Order 13690 on January 30, 2015. EO 13690 amends EO 11988 to, among other things, establish a set of standards to be utilized by all Federal departments and agencies for all federally funded projects that occur in and adjacent to floodplains.

Executive Order 13690 Details
EO 13690 is entitled Establishing a Federal Flood Risk Management Standard and a Process for Further Soliciting and Considering Stakeholder Input. As directed by the Order and through coordination of various stakeholders by the National Security Council, FEMA published the first Federal Flood Risk Management Standard (FFRMS). In addition, just as EO 13690 is an amendment to EO 11988, FEMA amended the 1978 Guidelines, now titled, Revised Guidelines for Implementing Executive Order 11988, Floodplain Management – Draft For Public Comment, dated January 28, 2015 (Draft Revised Guidelines).

The Draft Revised Guidelines provide a revised glossary of definitions, a history of the evolution of EO 11988 and EO 13690, a breakdown and interpretation of EO 11988 as it is amended by EO 13690, and a narrative outlining the eight-step decision making process revised to reflect the amendments to the Order, all referencing the new FFRMS. The FFRMS builds upon the framework of EO 11988 and, in conjunction with the Draft Revised Guidelines, applies to Federal Actions that occur within, or have an effect on, floodplains. The two major questions among interested parties are “What are considered Federal Actions?” and “How will floodplains now be defined?”

As provided in both the FFRMS and the Draft Revised Guidelines, the definition of Federal Actions derives from EO 11988, and per the Draft Revised Guidelines is defined as follows:

Action – any Federal activity including “(1) acquiring, managing, and disposing of Federal lands and facilities; (2) providing Federally undertaken, financed, or assisted construction and improvements; (3) conducting Federal activities and programs affecting land use, including but not limited to water and related land resources planning, regulating, and licensing activities.” (from EO 11988, Section 1)

Note that the definition of Action or Federal activity is still defined as it was originally in EO 11988 and still includes any project that involves Federal planning, regulating, and licensing activities in a floodplain.

In the original Order, a floodplain was defined as the 100 year flood. However, the new definition of floodplain provided in the amended Order and in the Draft Revised Guidelines is as follows:

Floodplain – the lowland and relatively flat areas adjoining inland and coastal waters including flood prone areas of offshore islands. For the purposes of this Order, the floodplain shall be established using the Federal Flood Risk Management Standard (FFRMS).

Furthermore, the new FFRMS states that when complying with the Order, the floodplain shall be established by utilizing one of the following approaches:

Climate-informed Science Approach – The elevation and flood hazard area that result from using a climate-informed science approach that uses the best-available, actionable hydrologic and hydraulic data and methods that integrate current and future changes in flooding based on climate science. This approach will also include an emphasis on whether the action is a critical action as one of the factors to be considered when conducting the analysis.
Freeboard Value Approach – The elevation and flood hazard area that result from using the freeboard value, reached by adding an additional 2 feet to the base flood elevation for non-critical actions and from adding an additional 3 feet to the base flood elevation for critical actions.
“500-year” Elevation Approach – The area subject to flooding by the 0.2-percent-annual-chance flood.

FEMA has held several public outreach sessions across the country where they have expressed that the intent of both the amended Order and the Draft Revised Guidelines are to enable Federal departments and agencies to pick the most appropriate approach in establishing design criteria based on flood data that will enable an appropriate level of resiliency for federally funded projects. They insist that the amendments will not affect the National Flood Insurance Program or flood insurance premiums. However, the language provided in both the amended Order and in the Draft Revised Guidelines seems to clearly indicate that any project, not just federally funded projects, requiring a Federal permit (i.e., such as wetlands permits) must comply with the Order and, therefore, must comply with the higher resiliency standards outlined in the new FFRMS. It is unclear whether a project would require similar compliance if, rather than needing a federal permit, it required FEMA review of a map revision request.

Through the NFIP, FEMA establishes minimum development standards of which all participating communities must adopt (or make more stringent) and FEMA reviews all requests for changes to floodplain mapping. FEMA is a Federal agency and the NFIP is a Federal program. Projects requiring FEMA review through the NFIP map revision process meet the definition of Federal Action and therefore raises the question of whether any project, not just federally funded projects, requiring FEMA review for a map revision must comply with the new standards. Although developing to such higher standards would only reduce flood insurance premiums on a property or structure (thus, no negative affect), it would indeed have an effect on the NFIP, all communities participating in the NFIP, and all projects, whether federally funded or not, that propose work in or adjacent to a floodplain.

FEMA is soliciting public comments on the Draft Revised Guidelines to be provided by May 6, 2015. Input from stakeholders and the public may be submitted by one of the following methods:

FEDERAL RULEMAKING PORTAL: www.regulations.gov
Search for the notice in docket ID FEMA-2015-0006 and follow the instructions to submit comments.
MAIL/HAND DELIVERY/COURIER: Regulatory Affairs Division, Office of Chief Councel, Federal Emergency Management Agency, 8NE, 500 C Street, SW, Washington, DC 20472-3100
For more information regarding the new Executive Order or if you would like to discuss how floodplain regulations affect your property, please contact Mike Marsala or Mike Rolband.