Updates to Floodplain Management and Protection of Wetlands Regulations To Implement the Federal Flood Risk Management Standard

<RULE> DEPARTMENT OF HOMELAND SECURITY <SUBAGY>Federal Emergency Management Agency</SUBAGY> <CFR>44 CFR Part 9</CFR> <DEPDOC>[Docket ID FEMA-2023-0026]</DEPDOC> <RIN>RIN 1660-AB12</RIN> <SUBJECT>Updates to Floodplain Management and Protection of Wetlands Regulations To Implement the Federal Flood Risk Management Standard</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Federal Emergency Management Agency, Department of Homeland Security. <HD SOURCE="HED">ACTION:</HD> Final rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> On October 2, 2023, the Federal Emergency Management Agency (FEMA) published a notice of proposed rulemaking (NPRM) and supplementary policy that proposed to implement the Federal Flood Risk Management Standard (FFRMS) and update the agency's 8-step decision-making process for floodplain reviews by changing how FEMA defines a floodplain with respect to certain actions and how FEMA uses natural systems, ecosystem processes, and nature-based approaches when developing alternatives to locating a proposed action in the floodplain. After a careful review of the public comments received, FEMA is now issuing a final rule that implements the proposed rule, with some minor amendments. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> This rule is effective September 9, 2024. </EFFDATE> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Portia Ross, Policy and Integration Division Director, Office of Environmental Planning and Historic Preservation, Resilience, DHS/FEMA, 400 C St. SW, Suite 313, Washington, DC 20472-3020. Phone: (202) 709-0677; Email: <E T="03">fema-regulations@fema.dhs.gov.</E> </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">Contents</HD> <EXTRACT> <FP SOURCE="FP-2">I. Executive Summary</FP> <FP SOURCE="FP1-2">A. Purpose of the Regulatory Action</FP> <FP SOURCE="FP1-2">B. Summary of the Notice of Proposed Rulemaking (NPRM)</FP> <FP SOURCE="FP1-2">C. Summary of Changes From the NPRM to the Final Rule</FP> <FP SOURCE="FP-2">II. Background and Legal Authority</FP> <FP SOURCE="FP1-2">A. Executive Order 11988, “Floodplain Management”</FP> <FP SOURCE="FP1-2">B. Statutory Authority To Require FFRMS Under FEMA Grant Programs</FP> <FP SOURCE="FP1-2">C. 44 CFR Part 9, “Floodplain Management and Protection of Wetlands”</FP> <FP SOURCE="FP1-2">D. Executive Order 13690, the Federal Flood Risk Management Standard and Subsequent Amendments to Executive Order 11988, and Revisions to the 1978 Guidelines</FP> <FP SOURCE="FP1-2">E. Substantive Components of the FFRMS</FP> <FP SOURCE="FP1-2">F. Summary of the 2023 Proposed Rule and Proposed FFRMS Policy</FP> <FP SOURCE="FP1-2">G. Summary of FEMA's Final Rule and Updated Policy</FP> <FP SOURCE="FP-2">III. Discussion of Public Comments and FEMA's Responses</FP> <FP SOURCE="FP1-2">A. Summary of Public Comments</FP> <FP SOURCE="FP1-2">B. Comments in Support of the Rule</FP> <FP SOURCE="FP1-2">C. Comments in General Opposition to the Rule</FP> <FP SOURCE="FP1-2">D. FEMA's Authority for Part 9 and Revisions</FP> <FP SOURCE="FP1-2">E. Definitions</FP> <FP SOURCE="FP1-2">F. FFRMS Applicability</FP> <FP SOURCE="FP1-2">G. FFRMS Approaches</FP> <FP SOURCE="FP1-2">H. FEMA's FFRMS Policy Approach</FP> <FP SOURCE="FP1-2">I. The FFRMS and Floodplain/Wetland Determination Data</FP> <FP SOURCE="FP1-2">J. FFRMS Implementation</FP> <FP SOURCE="FP1-2">K. Emphasis on Nature-Based Approaches</FP> <FP SOURCE="FP1-2">L. Other 8-Step Process Comments</FP> <FP SOURCE="FP1-2">M. Other Comments</FP> <FP SOURCE="FP1-2">N. Accessibility</FP> <FP SOURCE="FP1-2">O. Regulatory Impact Analysis Comments</FP> </EXTRACT> <HD SOURCE="HD1">I. Executive Summary</HD> <HD SOURCE="HD2">A. Purpose of the Regulatory Action</HD> The purpose of this regulatory action is to finalize a rulemaking that will improve the preparedness and resilience of communities and Federal assets against the increasing impacts of flooding. All Federal agencies, including FEMA, have long taken 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 when carrying out certain agency functions. Federal agencies accomplish this by applying the longstanding 8-step decision-making process to any action they take in floodplains to ensure they 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. This framework was originally established in 1977 by Executive Order 11988, “Floodplain Management,” (42 FR 26951) which was issued in furtherance of the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 <E T="03">et seq.</E> ), the National Flood Insurance Act of 1968 as amended (NFIA) (42 U.S.C. 4001 <E T="03">et seq.</E> ), and the Flood Disaster Protection Act of 1973, as amended (Flood Disaster Protection Act) (Pub. L. 93-234, 87 Stat. 975). Executive Order 11988 was supplemented by guidance called “Floodplain Management Guidelines” issued in 1978 by the U.S. Water Resources Council (“1978 Guidelines”). <SU>1</SU> <FTREF/> FEMA implemented Executive Order 11988 in 1980 through the promulgation of regulations at 44 CFR part 9, “Floodplain Management and Protection of Wetlands,”  <SU>2</SU> <FTREF/> which applies the 8-step decision-making process to all actions FEMA directly takes and to all actions that it funds through grants to eligible State, local, Tribal, and territorial (SLTT) governments, certain private non-profits, and individuals and households for pre- and post-emergency or disaster-related projects. <FTNT> <SU>1</SU>  42 FR 6030, Feb. 10, 1978. A PDF copy of the 1978 Guidelines can be found at this link: <E T="03">hud.gov/sites/documents/DOC_14216.PDF</E> (last accessed Jan. 24, 2024). </FTNT> <FTNT> <SU>2</SU>  FEMA published an interim final rule on December 27, 1979 (44 FR 76510) and a final rule on September 9, 1980 (45 FR 59520). Note that this part also implements a related Executive Order 11990, “Protection of Wetlands.” <E T="03">See</E> 42 FR 26961, May 25, 1977. </FTNT> The first step in the 8-step process is to determine whether the action FEMA proposes to take or fund will occur in a floodplain or wetland. <SU>3</SU> <FTREF/> Section (6)(c) of Executive Order 11988 defined the term “floodplain” to mean, at a minimum, “that area subject to a one percent or greater chance of flooding in any given year,” which is recognized as the “base floodplain.” Executive Order 11988 and the base floodplain definition remained unchanged from 1977 until 2015. In 2015, President Barack Obama amended Executive Order 11988 by adding a new flood risk reduction standard to the existing 8-step decision-making process to improve the Nation's resilience against the increasing impacts of flooding. <SU>4</SU> <FTREF/> The flood risk reduction standard, called the Federal Flood Risk Management Standard (FFRMS), is a flexible framework to define the floodplain that allows agencies to choose among several approaches to expand the base floodplain to a higher vertical elevation and corresponding horizontal extent for all Federally funded projects. Federally funded projects are defined as actions where Federal funds are used for new construction, substantial improvement, or repairs to address substantial damage to structures and facilities. <SU>5</SU> <FTREF/> The amendments also direct agencies to use natural systems, ecosystem processes, and nature-based approaches when developing alternatives to locating the action in the floodplain. The Water Resources Council then updated the 1978 Guidelines and issued the “Guidelines for Implementing Executive Order 11988, Floodplain Management, and Executive Order 13690, `Establishing a Federal Flood Risk Management Standard and a Process for Further Soliciting and Considering Stakeholder Input' ” (“Revised Guidelines”)  <SU>6</SU> <FTREF/> to provide additional information on the use of the FFRMS. <FTNT> <SU>3</SU>  Any action FEMA takes in a floodplain or wetland, including its provision of grants for disaster assistance, undergoes an analysis pursuant to Executive Orders 11988 and 11990 (unless the action is specifically exempted from the requirements of the Orders). The grant recipient, therefore, generally provides information to FEMA about the practicability of alternatives outside the floodplain and wetland and other information to assist in the analysis. </FTNT> <FTNT> <SU>4</SU>  Executive Order 13690, “Establishing a Federal Flood Risk Management Standard (FFRMS) and a Process for Further Soliciting and Considering Stakeholder Input.” 80 FR 6425, Feb. 4, 2015. In 2017, President Donald Trump revoked the amendments to Executive Order 11988. <E T="03">See</E> Executive Order 13807, “Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Project,” 82 FR 40463, Aug. 24, 2017. In 2021, President Joseph Biden reinstated the amendments. <E T="03">See</E> Executive Order 14030, “Climate Related Financial Risk,” 86 FR 27967, May 25, 2021. </FTNT> <FTNT> <SU>5</SU>   <E T="03">See</E> “Guidelines for Implementing Executive Order 11998, Floodplain Management, and Executive Order 13690, Establishing a Federal Flood Risk Management Standard and a Process for Further Soliciting and Considering Stakeholder Input,” 80 FR 64008 (Oct. 22, 2015) (providing notice of the availability of the Revised Guidelines in the docket for the rulemaking at <E T="03">https://www.regulations.gov/document/FEMA-2015-0006-0358</E> (main content) and <E T="03">https://www.regulations.gov/document/FEMA-2015-0006-0372</E> (ap ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 836k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━