Introduction

Executive Order 11988 (EO 11988) requires Federal agencies to avoid, to the extent possible, the long- and short-term adverse impacts associated with the occupancy and modification of floodplains where there is a practicable alternative. The Federal Emergency Management Agency (FEMA) is now proposing to amend its regulations (found in 44 CFR Part 9) which describes the traditional 8-step process that FEMA uses to implement EO 11988. The amendment is being driven by Executive Order 13690 (EO 13690), issued by President Obama in 2015 to address increased risks as a result of climate change, which changed the definition of “floodplain” for projects that are “Federally funded” (defined as actions involving the use of Federal funds for new construction, substantial improvement, or to address substantial damage to a structure or facility). In these cases, the new broader definition of floodplain (developed under one of three approaches described below) will likely result in a larger floodplain and a requirement to design projects such that they are resilient to a higher vertical elevation. However, for actions that don’t meet the definition of a Federally funded project, FEMA will continue to use the historical definition.

Background

So, before considering the amendments proposed for the regulations, perhaps we should review what the 8-step process is:

1. Determine what the floodplain is. Obviously, if you need to consider whether an action is necessary and how it affects the floodplain, you need to know what the floodplain is. The regulations had FEMA consult a series of documents, from flood insurance rate maps (FIRMs) to flood insurance studies (FIS) to flood boundary floodway maps (FBFMs). The goal was to determine the boundaries for the 1 percent annual flood – the 100-year event – and see whether the proposed action sat in that area (or for “critical actions” to look at the .2 percent annual floodplain – the floodplain created by the 500-year event).
2. Facilitate early public review. FEMA uses the Federal Register and mail to interested parties to provide notice to the public of action to individuals and organizations that may have an interest in the action, all to ensure early public involvement in the decision-making process.
3. Develop a list of practicable alternatives. FEMA will develop a list of alternatives that considers not taking the action; taking the action in a different location; and modifying the action to have less impact on the floodplain. In analyzing alternatives, FEMA is to consider factors such as the natural environment, social concerns, economic aspects, and legal constraints.
4. Identify the impacts of the chosen alternatives. In a process akin to analysis under the National Environmental Policy Act (NEPA), FEMA is to then understand and disclose the impacts of the chosen alternative. FEMA is to avoid the floodplain location unless it is the only practicable alternative, and then must take actions to minimize harm to and within floodplains and wetlands.
5. Take steps to minimize impacts. Assuming that the selected location is in the floodplain, FEMA shall minimize the effects and take actions to restore and preserve the natural and beneficial floodplain values served by the floodplain.
6. Reevaluate alternatives. Now that this further analysis of impacts, and efforts to minimize impacts, has been completed, FEMA shall again look at the selected alternative and the other alternatives and confirm that the action is still the only practicable alternative.
7. Develop findings. Whatever the final selected alternative, FEMA shall develop finding to justify the process and its selection.
8. Implementation of action. After public disclosure and review, FEMA may implement its selection action.

As a result of President Obama’s issuance of EO 13690, a leadership group was created to develop guidance on how the Federal government should implement the new standard created by the EO; The Federal Flood Risk Management Standard (FFRMS) was born. The FFRMS was designed to be a flexible framework to increase resilience against flooding and to help preserve the natural values of floodplains. The leadership group reasoned that incorporating this new standard into existing agency processes would ensure that agencies expand management from the current base flood level to a higher vertical elevation and corresponding horizontal floodplain so that Federally funded projects would last as long as intended. In addition the FFRMS would encourage the use of natural features and nature-based approached in the development of alternatives for all Federal agencies.

While it is not clear that the proposed amendments provide a complete list of “Federally funded projects” under FEMA’s aegis, and it would not be sensible to do so as such programs can regularly change, it appears that Federally funded projects could include various actions under FEMA’s Public Assistance (PA), Individual Assistance (IA), Hazard Mitigation Assistance (HMA), and grants processed by FEMA’s Grant Programs Directorate (GPD).

The FFRMS gives a Federal agency a choice on how to select the appropriate floodplain for Federally funded projects: (1) the climate-informed science approach which utilizes the best-available, actionable hydrologic and hydraulic data and methods that integrate current and future changes in flooding based on climate science; (2) the freeboard value approach, which adds two to three feet to the base flood elevation as an extra measure of safety (two feet for normal actions and three feet for critical actions); (3) the .2 percentage annual chance flood approach, in which the 500-year event elevation is used rather than the 100-year event elevation; or (4) a method identified in a subsequent update to the FFRMS.

Please check back next Monday for our thoughts on the new draft regulations. . . .