FEMA proposing new rules on building in floodplains

In January of 2015, the Obama Administration issued Executive Order 13690. The order was aimed at improving resilience to current and future flood risks and modified the 1977 Executive order 119888, which addressed flood plain development. Among other actions, the new order directed FEMA to develop a proposed amendment to 44 CFR part 9, “Floodplain Management and Protection of Wetlands.” To achieve resiliency, increase public safety, and require investment to mitigate future costs, this proposed regulation will result in significant additional first costs for affected building projects.

In response to Order 13690, FEMA is proposing a rewrite of the longstanding 100-year floodplain standard for federally funded projects. The proposed rewrite would mandate that buildings be constructed at two feet “freeboard.” Freeboard is a factor usually expressed in feet above a flood level for purposes of building above a floodplain. Today, building codes in many jurisdictions require construction to be one foot freeboard.

There is much contained in FEMA’s 37-page proposed rule, published in the Federal Register, which goes far beyond the National Flood Insurance Program’s purpose of protecting people and property from flood damage. By elevating the floodplain to a natural resource worthy of protection, there are four options proposed to achieve this for federally funded building projects:

1. construct two feet freeboard (above the 100-year floodplain); or three feet freeboard for “critical actions” (e.g., chemical storage facilities, hospitals, housing for the elderly, data centers, etc.); or
2. construct above the 2% annual chance flood approach (also known as the 500-year flood); or
3. construct “utilizing the best available, actionable hydrologic and hydraulic data and methods that integrate current and future changes in flooding based on climate science;” or
4. construct above “the elevation and flood hazard area that result from using any other method identified” by FEMA.

Each of the options is described in great detail in the proposed rule, with a comment period that ends October 21, 2016.

Because the proposed rule was issued in response to an Executive Order, it is not based on Congressional authority. In reaction to the anticipated detriment to development and the assumed additional costs for the proposed resiliency, the House of Representatives passed an appropriations bill in May (House Amendment 197 to H.R. 2028) that may defund the underlying Executive Order, including the FEMA proposed rule as Executive branch overreach.