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There is significant uncertainty as to the intent and effect of the new Federal Flood Risk Management Standard, released as part of the Obama Administration’s issuance of Executive Order 13690, issued in January to amend Executive Order 11988. Based on the chatter in the flood risk management community, the FFRMS has the potential to turn projects and communities upside-down. But based on some new information coming from the government, it appears that the intent and effect could be rather narrow. In this entry we provide an initial exploration of this issue.


Executive Order 11988 has long been inconsistently applied by the Federal Government. Issued in 1977 by the Carter Administration to slow the Federal role in development in areas not yet having 100-year flood protection, some Federal agencies have largely ignored the EO while others have embraced it. In its simplest form the EO simply looks at whether an area is within the 100-year floodplain, and if so, it requires a multi-step analysis to determine whether Federal funding or approvals should be provided to allow a project to go forward. The EO explicitly directs agencies to use the predecessor’s of FEMA’s flood insurance rate maps (FIRMs) to determine whether the multi-step inquiry applies. While some Federal agencies have elected to use a more rigorous standard (such as the Army Corps of Engineers), the FEMA FIRMs have remained the almost universal standard.

Executive Order 13690 and the FFRMS fundamentally change that by requiring that Federal agencies use one of a series of other more stringent floodplain tests to evaluate the floodplain to ensure that climate change is addressed in the Federal decision-making process. Each of these tests will expand the area previously affected by EO 11988, and require a more compelling case for Federal support to be provided in such a floodplain.

What People Are Saying

The FFRMS’ use of these expanded floodplains is scaring the bejesus out of many in the flood risk management community. Whether real or unfounded fears, some people are saying:

  • FEMA will be forced to redo all of its FIRMs, mapping whole communities into the floodplain that were previous outside of the floodplain;
  • Ongoing Army Corps of Engineers’ studies will need to be restarted, losing years of progress and wasting tens of millions of dollars;
  • Mortgages can’t be issued on homes in these expanded floodplains because the vast majority of mortgages are Federally backed instruments;
  • Local agencies will be subject to conflicting standards used by different Federal agencies interpreting the FFRMS; and
  • Hundreds of private and local projects around the country will come to a grinding halt with no further Federal investment.

These interpretations are certainly reasonable when the new Executive Order is read quickly along with the publicity on the Internet.

What the Federal Agencies Are Saying

A very different picture of the new EO and the FFRMS emerges when you dialogue with the Federal agencies. I was fortunate enough, along with a client, to get a meeting in Washington with representatives of FEMA’s Office of the Advocate, it’s Mitigation Division, the Army Corps of Engineers, FEMA’s Office of Counsel, and a representative of the Council on Environmental Quality (the agency that developed the new standard). While there does appear to be different levels of understanding at different agencies, in general the Federal agencies are offering a very different picture:

  • The FFRMS is designed solely to influence Federal investments. While FEMA’s 100-year standard may be adequate today, the Federal government wants to make wise investments for its infrastructure that will exist for decades, and the new FFRMS incorporates the effects of climate change into decisions on building new Federal structures and facilities.
  • Many communities around the country have adopted floodplain management ordinances that are stricter than FEMA’s standard, requiring structures to be elevated one, two or three feet above the base flood elevation (BFE). The FFRMS is simply helping Federal agencies catch up to where many local agencies already are by requiring that extra elevation above the BFE as well.
  • The FFRMS is not intended to direct that FEMA do anything different in its mapping program under the National Flood Insurance Program. Instead, FEMA’s FIRMs, based on the traditional 100-year standard, are the baseline upon which the FFRMS is built.
  • The FFRMS is not intended to influence the actions of local government, who simply remain bound by their own floodplain management ordinances.

These interpretations are also reasonable when the new Executive Order is read carefully and all ambiguities are read to favor a narrow interpretation.

So What Do We Think?

In short, it is too soon to tell. Like most modern Federal policies, the Executive Order and the FFRMS is drafted extremely broadly, and could likely mean just about anything you might want it to mean. To the extent that the messaging I heard from the Federal agencies was correct, then the draft guidelines must be tightened and narrowed.

So what will we do? We intend to attend the March 11 listening session in Sacramento, California and provide comments on the draft guidelines. We also intend to provide extensive written comments on the draft guidelines to ensure that the guidelines are tightened and narrowed and are consistent with the narrow intent identified in the Washington DC meeting. Check back here in the coming weeks for a report on the March 11 listening session and to see our written comments. And please share your own thoughts below that we can incorporate into our comments.

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.