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ThoughtsThis is a follow-up to our blog post last week, “FEMA Issues Draft Regulatory Amendments To Implement President Obama’s Executive Order 13690 And The Federal Flood Risk Management Standard; Comments Due By October 21, 2016.”

FEMA’s Approach to Amending Its Regulations

Many of the proposed amendments to the regulations focus on the details for the implementation methodologies as well as the inter-relationship between them. For example, what should one do when there are contradictory scientific approaches? What should one do when the best available science indicates a flood elevation that is lower than would be used under the freeboard value approach? Is it practical to use the .2 percentage approach when only 18% of FEMA’s maps contain data on the .2% event? Based on these and other questions, on page 35 of the proposed amendment package FEMA proposes to make the freeboard value approach the standard approach for all events that are not critical actions, and to make the freeboard value approach the chosen approach for critical actions unless the agency finds that the climate-informed science approach results in a higher elevation.

Unfortunately, these two statements seem to contradict other information in the package. For example, on page 54 FEMA proposes “to implement the FFRMS in its regulations by adopting the flexible framework proposed in Executive Order 13690 in its entirety, instead of mandating a particular approach. Under this approach FEMA would provide additional guidance (more readily capable of revision and updates) that addresses which approach FEMA would use for different types of actions and how FEMA would tailor its application of the various approaches depending on the type and criticality of the action.” Further, in the actual proposed amendments (found on page 111) FEMA defines the FFRMS Floodplain as the floodplain “established using of the following approaches,” and then lists the four approaches. Thus, it is not clear if the regulations are to standardize behind the freeboard approach, or if the regulations will retain flexibility and then rely on later guidance to push the agency toward the freeboard approach. This is a key outstanding question which we will seek answers to by providing comments on the proposed amendments.

In a sign of sensibility and logic, FEMA appears to appropriately exempt its use of mobile homes from the FFRMS. The definition of new construction specifically exempts placement of mobile homes or else FEMA might be limited from providing temporary housing after a flood event unless the structures were sufficiently elevated. As explained by FEMA:

“FEMA proposes to designate the 1 percent annual chance (base) floodplain as the floodplain of choice when taking temporary housing actions for several reasons:

“(1) the temporary nature of the assistance means there is not an opportunity to improve community resilience or floodplain management long term, which is the intent of the FFRMS; (2) expansion of the base floodplain to the FFRMS floodplain and prohibiting placement of temporary housing in the FFRMS floodplain may result in the temporary housing of individuals and families many miles from their home, which is not practicable; and (3) it is not always feasible to elevate mobile homes, when they are being placed as temporary housing.”

Importantly, the proposed amendments do note that the FFRMS standard would apply to any mobile home sold by FEMA, as the presumption is that such use would or could become permanent.

The proposed amendments also include a transition period to minimize disruption of projects already in the pipeline by altering the scope provision. In particular, only new actions would be covered by the amendments; any actions already underway would be subject to the old standard.”

Our Conclusions

All in all, we think that the amendments do a decent job of proposing a framework for implementing the FFRMS within FEMA’s program. In an era in which the Federal government is oft accused of seeking to expand its regulatory reach and impose its will when not needed, these changes are largely sensible and restrained.

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.