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President Obama recently  issued an Executive Order “Establishing a Federal Flood Risk Management Standard and a Process for Further Soliciting and Considering Stakeholder Input.” The Order sets forth President Obama’s administration’s floodplain management policy and significantly amends Executive Order 11988 issued by President Carter.  Downey Brand has created a redline for your reference.

In 1977, then President Carter issued Executive Order No. 11988 (“EO 11988” or “Order”) in order 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.  While Federal enforcement of this Order has been inconsistent over the years, recently Federal agencies have begun to apply the Order to Federal permitting, studies, decisions, and funding.

Section 1 of EO 11988 provides the overriding goals for application of the Order:

Each agency shall provide leadership and shall 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.

President Obama’s Executive Order makes clear that his administration is concerned about the effect of climate change on floodplain management when he states:

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. The Federal Government has developed processes for evaluating the impacts of Federal actions in or affecting floodplains to implement Executive Order 11988.

As part of a national policy on resilience and risk reduction consistent with my Climate Action Plan, 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 result of these efforts is the Federal Flood Risk Management Standard (Standard), a flexible framework to increase resilience against flooding and help preserve the natural values of floodplains. Incorporating this Standard will 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 ensure that projects funded with taxpayer dollars last as long as intended.

Obama Executive Order at Section 1.  But while this language refers to establishing a standard for “federally funded projects,” a careful review of EO 11988 shows that it also applies to any Federal agency actions, such as the granting of permits.  In light of the extensive permits often required for local development (including Endangered Species Act compliance and Section 404 permits) it seems likely that the Federally funded project are just the tip of the iceberg.

The Carter Executive Order
Executive Order 11988 directs that in carrying out the activities described in Section 1 of Executive Order 11988, each agency has a responsibility to evaluate the potential effects of any actions it may take in a floodplain.  The Order then directs:

(a)(1) Before taking an action, each agency shall determine whether the proposed action will occur in a floodplain–for major Federal actions significantly affecting the quality of the human environment, the evaluation required below will be included in any statement prepared under Section 102(2) (C) of the National Environmental Policy Act. This Determination shall be made according to a Department of Housing and Urban Development (HUD) floodplain map or a more detailed map of an area, if available.

After the issuance of EO 11988, the Water Resources Council issued guidance for EO 11988 for use by all Federal agencies.  See Federal Register, Vol. 43, No. 29 – Friday, February 10, 1978 (“FedReg”).  The guidance defined the term “floodplain” as used by President Carter in the Order:

Floodplain – the low land and relatively flat areas adjoining inland and coastal waters including flood-prone areas of offshore islands. including at a minimum, that area subject to a one percent or greater chance of flooding in any given year. The base floodplain shall be used to designate the 100-year floodplain (one percent chance floodplain). The critical action floodplain is defined as the 500-year floodplain (0.2 percent chance floodplain).

FedReg at page 5. Further, in explaining which agency should be given deference in how to interpret the Order, the official guidance notes that “agencies are required to consult with FIA [Flood Insurance Administration, now part of FEMA] before issuing their procedures, and agencies with control over Federal property are required to follow the standards in FIA’s regulations unless they are demonstrably inappropriate.” FedReg at page 8.  This directive appears to be followed by most Federal agencies today, as a review of the HUD website discloses the following regarding HUD floodplain maps as referenced in the Order itself:

Executive Order 11988- Floodplain Management requires Federal activities to avoid impacts to floodplains and to avoid direct and indirect support of floodplain development to the extent practicable. The Federal Emergency Management Agency (FEMA) designates floodplains. The FEMA Map Service Center provides this information in the form of FEMA Flood Insurance Rate Maps (FIRMs).

In each of these cases, the guidance directs Federal agencies to look to whether an area is in a FEMA defined 100-year floodplain to understand whether the Order is applicable and to look at whether an area is in a FEMA 500-year floodplain for critical infrastructure.  Indeed, the Corps’ own guidance on EO 11988 supports this very conclusion.  ER 1165-2-26 includes an eight-step floodplain management evaluation which includes a first step: “Step 1:  Determine if a proposed action is in the base floodplain (1/100 year floodplain or 1% ACE).”

The Obama Executive Order
The Obama Executive Order fundamentally changes the landscape.  Executive Order 11988 applied to Federal funding, or Federal permit issuance, applicable to construction within a FEMA 100-year floodplain (or a FEMA 500-year floodplain for any critical facilities).  In order to provide additional resiliency in light of climate change, under the Obama Executive Order Federal agencies are no longer required to look only at the 100-year floodplain as defined by FEMA.  Rather, they are to use one of the following methods to evaluate compliance with EO 11988, any of which has the potential to increase the impact of the Executive Order:

  • Agencies should consider “the elevation and flood hazard area that results 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.”  That means that using an adopted FEMA flood insurance rate map showing the 100-year foodplain is no longer adequate; rather, the approving or funding Federal agency must now investigate the assumptions underlying the project to ensure those assumptions consider the best-available data and methods.  While there is a fair amount of data and modeling for climate change impacts on coastal communities, there is no consensus for riparian systems as to how to incorporate in this growing body of data and thinking.
  • Agencies should ensure that an additional two feet of freeboard have been included for all non-critical structures and three feet of freeboard have been included for all critical structures.  While it seems clear how to incorporate this guidance in building approval (just make the building higher), it is far less clear for levee construction.  Does this mean that when a local agency is constructing a levee and needs a Federal permit (perhaps a 404 permit), that the levee must now have two extra feet of freeboard, or must have three feet of freeboard if it will protect a fire station, police station, etc?
  • Agencies should use FEMA’s reported 500-year (.2 percent chance) maps to make determinations.  Unfortunately, not all river systems have 500-year mapping associated with them.  And agencies were already supposed to use 500-year maps for critical facilities, so is there a new stricter standard for critical facilities?
  • Finally, obtain permission from the head of the agency to make an exception.  While we can see this being approved in the interest of national security, it seems highly unlikely for any locally initiated projects.

Finally, the Obama Executive Order also defines the term ‘critical action’ as “any activity for which even a slight chance of flooding would be too great” but provides no guidance as to how to make this determination.  Such a definition is fraught with problems and grants entirely too much discretion to agencies to make these determinations.

What’s next
Simultaneous with the issuance of the Obama Executive Order, the Federal Emergency Management Agency also issued “Revised Guidelines for Implementing Executive Order 11988, Floodplain Management” dated January 28, 2015.  The draft guidelines are extensive, so we will provide separate comments at a later time.  But suffice it to say that the flood damage reduction community would be wise to submit extensive comments on these guidelines in light of the significantly different approach raised by the Obama Executive Order.

Photo of Scott L. Shapiro Scott L. Shapiro

Scott Shapiro is known for his expertise in flood protection improvement projects throughout California’s Central Valley. He is helping clients with more than a billion dollars in projects in California’s Central Valley and issues involving the Federal Emergency Management Agency (FEMA) and the…

Scott Shapiro is known for his expertise in flood protection improvement projects throughout California’s Central Valley. He is helping clients with more than a billion dollars in projects in California’s Central Valley and issues involving the Federal Emergency Management Agency (FEMA) and the U.S. Army Corps of Engineers (USACE) throughout the Western United States.

With a special focus on massive flood protection improvement projects, Scott advises clients through regulatory, contractual, financing, and legislative challenges. Acting as general or special counsel, he regularly interacts with senior management at USACE (Headquarters, South Pacific Division, and Sacramento District), the California Department of Water Resources, and the Central Valley Flood Protection Board. He was named to the National Section 408 Task Force and has been invited to give testimony to the National Academies. Scott was instrumental in helping the first regional flood improvement agency that took a basin threatened by flood risk from less than 30-year level of protection to a level of protection approaching 200-year.

Having worked with FEMA on issues of floodplain mapping and levee accreditation for many years, Scott has developed collaborative environments in which he fosters win-win solutions for his clients. He is also currently serving as the lead counsel on a flood insurance rate map (FIRM) appeal and has drafted Federal legislation to modify the National Flood Insurance Program (NFIP) several times.

Scott is known throughout the region for his extensive litigation experience focusing on cases arising from levee failures. He has litigated levee failures resulting from underseepage, failed encroachments, and rodent burrows as well as briefing levee overtopping cases at the appellate level. Scott is one of the few attorneys with experience litigating flood cases on behalf of plaintiffs as well as defendant government entities.