[Federal Register Volume 81, Number 162 (Monday, August 22, 2016)]
[Proposed Rules]
[Pages 57401-57437]
[FR Doc No: 2016-19810]

Vol. 81

Monday,

No. 162

August 22, 2016

Part V

 Department of Homeland Security

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 Federal Emergency Management Agency

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44 CFR Part 9

 Updates to Floodplain Management and Protection of Wetlands
Regulations To Implement Executive Order 13690 and the Federal Flood
Risk Management Standard; Proposed Rule

Federal Register / Vol. 81 , No. 162 / Monday, August 22, 2016 /
Proposed Rules

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DEPARTMENT OF HOMELAND SECURITY

Federal Emergency Management Agency

44 CFR Part 9

[Docket ID: FEMA-2015-0006]
RIN 1660-AA85

Updates to Floodplain Management and Protection of Wetlands
Regulations To Implement Executive Order 13690 and the Federal Flood
Risk Management Standard

AGENCY: Federal Emergency Management Agency, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Federal Emergency Management Agency (FEMA) proposes to
amend its regulations on ``Floodplain Management and Protection of
Wetlands'' to implement Executive Order 13690, which establishes the
Federal Flood Risk Management Standard (FFRMS). FEMA also proposes a
supplementary policy (FEMA Policy: 078-3) that would further clarify
how FEMA applies the FFRMS.

DATES: Comments must be received no later than October 21, 2016.

ADDRESSES: You may submit comments, identified by Docket ID: FEMA-2015-
0006, by one of the following methods:
    Federal eRulemaking Portal: http://www.regulations.gov. Follow the
instructions for submitting comments.
    Mail/Hand Delivery/Courier: Regulatory Affairs Division, Office of
Chief Counsel, Federal Emergency Management Agency, 8NE-1604, 500 C
Street SW., Washington, DC 20472-3100.
    To avoid duplication, please use only one of these methods. All
comments received will be posted without change to http://www.regulations.gov, including any personal information provided. For
instructions on submitting comments, see the Public Participation
portion of the SUPPLEMENTARY INFORMATION section.

FOR FURTHER INFORMATION CONTACT: Kristin Fontenot, Director, Office of
Environmental Planning and Historic Preservation, Federal Insurance and
Mitigation Administration, DHS/FEMA, 400 C Street SW., Suite 313,
Washington, DC 20472-3020. Phone:<PHONE_NUMBER>; Email:
<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

Table of Contents

I. Public Participation
II. Executive Summary
III. Background
    A. Executive Order 11988, ``Floodplain Management''
    B. 44 CFR Part 9, ``Floodplain Management and Protection of
Wetlands''
    C. Reevaluation of the 1 Percent Chance or 100-Year Flood
Standard
    D. Issuance of Executive Order 13690 and the Federal Flood Risk
Management Standard (FFRMS), and Revision of the 1978 Guidelines
    E. Substantive Components of the FFRMS
    F. FEMA's Implementation of Executive Order 13690 and FFRMS
IV. Discussion of the Proposed Rule
    A. Authority Citation
    B. Section 9.1--Purpose of Part
    C. Section 9.2--Policy
    D. Section 9.3--Authority
    E. Section 9.4--Definitions
    F. Section 9.5--Scope
    G. Section 9.6--Decision-Making Process
    H. Section 9.7--Determination of Proposed Action's Location
    I. Section 9.8--Public Notice Requirements
    J. Section 9.9--Analysis and Reevaluation of Practicable
Alternatives
    K. Section 9.11--Mitigation
    L. Section 9.13--Particular Types of Temporary Housing
    M. Section 9.17--Instructions to Applicants
    N. Section 9.18--Responsibilities
    O. Appendix A to Part 9--Decision-Making Process for E.O. 11988
V. Response to Leadership Intent Comments
VI. FFRMS FY 2016 Appropriations Language
VII. Regulatory Analyses
    A. Executive Order 12866, Regulatory Planning and Review &
Executive Order 13563, Improving Regulation and Regulatory Review
    B. Regulatory Flexibility Act
    C. Unfunded Mandates Reform Act
    D. National Environmental Policy Act (NEPA) of 1969
    E. Paperwork Reduction Act (PRA) of 1995
    F. Privacy Act
    G. Executive Order 13175, Consultation and Coordination With
Indian Tribal Governments
    H. Executive Order 13132, Federalism
    I. Executive Order 12898, Environmental Justice
    J. Executive Order 12630, Taking of Private Property
    K. Executive Order 12988, Civil Justice Reform
    L. Executive Order 13045, Protection of Children From
Environmental Health Risks and Safety Risks
    M. Federal Participation in the Development and Use of Voluntary
Consensus Standards and in Conformity Assessment Activities, OMB
Circular A-119

Table of Abbreviations

0.2PFA--0.2 Percent Annual Chance Flood Approach
ABA--Architectural Barriers Act
ADA--Americans With Disabilities Act
CEQ--Council on Environmental Quality
CFR--Code of Federal Regulations
CISA--Climate-Informed Science Approach
CRS--Community Rating System
EA--Environmental Assessment
EIS--Environmental Impact Statement
FBFM--Flood Boundary Floodway Map
FEMA--Federal Emergency Management Agency
FFRMS--Federal Flood Risk Management Standard
FHBM--Flood Hazard Boundary Map
FIMA--Federal Insurance & Mitigation Administration
FIRM--Flood Insurance Rate Map
FIS--Flood Insurance Study
FMA--Flood Mitigation Assistance
FVA--Freeboard Value Approach
GPD--Grant Programs Directorate
HMA--Hazard Mitigation Assistance
HUD--Department of Housing and Urban Development
IA--Individual Assistance
IPAWS--Integrated Public Alert Warning System
IRFA--Initial Regulatory Flexibility Analysis
MHU--Manufactured Housing Unit
MitFLG--Mitigation Framework Leadership Group
NEPA--National Environmental Policy Act of 1969
NFIA--National Flood Insurance Act, as Amended
NFIP--National Flood Insurance Program
NMF--National Mitigation Framework
NOAA--National Oceanic and Atmospheric Administration
NPRM--Notice of Proposed Rulemaking
OMB--Office of Management and Budget
PA--Public Assistance
PDM--Pre-Disaster Mitigation
PHC--Permanent Housing Construction
PIA--Privacy Impact Assessment
PRA--Paperwork Reduction Act of 1995
PV--Present Value
RFA--Regulatory Flexibility Act
SBREFA--Small Business Regulatory Enforcement Fairness Act of 1996
SORN--System of Records Notice
Stafford Act--Robert T. Stafford Disaster Relief and Emergency
Assistance Act, as Amended
USGS--United States Geological Survey
WRC--Water Resources Council

I. Public Participation

    We encourage you to participate in this rulemaking by submitting
comments and related materials. We will consider all comments and
materials received during the comment period.
    If you submit a comment, identify the agency name and the Docket ID
for this rulemaking, indicate the specific section of this document to
which each comment applies, and give the reason for each comment. You
may submit your comments and materials by electronic means, mail, or
delivery to the address under the ADDRESSES section. Please submit your
comments and materials by only one means.
    Regardless of the method used for submitting comments or material,
all submissions will be posted, without change, to the Federal e-
Rulemaking Portal at www.regulations.gov, and will

include any personal information you provide. Therefore, submitting
this information makes it public. You may wish to read the Privacy Act
notice that is available via a link on the homepage of
www.regulations.gov.
    Viewing comments and documents: For access to the docket to read
background documents or comments received, go to the Federal e-
Rulemaking Portal at http://www.regulations.gov. Background documents
and submitted comments may also be inspected at the Office of Chief
Counsel, Federal Emergency Management Agency, 500 C Street SW., 8NE-
1604, Washington, DC 20472-3100.

II. Executive Summary

    The Federal Emergency Management Agency (FEMA) is proposing to
amend 44 CFR part 9 ``Floodplain Management and Protection of
Wetlands'' and issue a supplementary policy to implement the Federal
Flood Risk Management Standard (FFRMS) that was established by
Executive Order 13690. 44 CFR part 9 describes the 8-step process FEMA
uses to determine whether a proposed action would be located within or
affect a floodplain, and if so, whether and how to continue with or
modify the proposed action. Executive Order 13690 and the FFRMS changed
the Executive Branch-wide guidance for defining the ``floodplain'' with
respect to ``federally funded projects'' (i.e., actions involving the
use of Federal funds for new construction, substantial improvement, or
to address substantial damage to a structure or facility). For FEMA
Federally Funded Projects, FEMA proposes to use the updated definition
of ``floodplain'' contained in the FFRMS. As discussed further below,
the FFRMS allows the agency to define ``floodplain'' using any of three
``approaches.'' In many cases, each of these approaches would result in
a larger floodplain and a requirement to design projects such that they
are resilient to a higher vertical elevation. For actions that do not
meet the definition of FEMA Federally Funded Project, FEMA would
continue to use the historical definition of floodplain, i.e., the area
subject to a one percent or greater chance of flooding in any given
year (or the area subject to a 0.2 percent annual chance of flooding in
any given year for critical actions). Finally, the proposed rule would
require the use, where possible, of natural systems, ecosystem
processes, and nature-based approaches in the development of
alternatives for all actions proposed in a floodplain.
    FEMA estimates that for the 10-year period after the rule goes into
effect, the benefits would justify the costs. Flooding is the most
common and costly type of natural disaster in the United States, and
floods are expected to be more frequent and more severe over the next
century due in part to the projected effects of climate change. This
proposed rule would ensure that FEMA Federally Funded Projects are
designed to be resilient to both current and future flood risks.

III. Background

    Below, FEMA describes in more specific detail the basis for this
proposed rule. Section III.A. describes Executive Order 11988 and the
Water Resources Council's 1978 ``Floodplain Management Guidelines''
(1978 Guidelines). Executive Order 11988 along with the 1978 Guidelines
established an 8-step decision-making process by which Federal agencies
carry out Executive Order 11988's direction to avoid the long- and
short-term adverse impacts associated with the occupancy and
modification of the floodplain and avoid the direct or indirect support
of floodplain development whenever there is a practicable alternative.
Section III.B. describes FEMA implementing regulations at 44 CFR part
9, which closely follow the model decision-making process. Section
III.C. describes how lessons learned from major events, including
Hurricane Sandy, prompted reevaluation of the prevailing standard for
determining whether a proposed action was located within a floodplain.
    Section III.D. describes the development of Executive Order 13690
and the Federal Flood Risk Management Standard. Lessons learned from
major flood events, including Hurricane Sandy, prompted reevaluation of
the prevailing standard. Pursuant to direction from the President's
Climate Action Plan and to build on the work of the Hurricane Sandy
Rebuilding Task Force, the Mitigation Framework Leadership Group
developed the Federal Flood Risk Management Standard. Subsequently, the
President issued Executive Order 13690 to establish the Federal Flood
Risk Management Standard, and to amend Executive Order 11988. Executive
Order 13690 directs agencies to issue or amend their existing
regulations and procedures to comply with the Order. Section III.E.
describes the substantive components of the Federal Flood Risk
Management Standard and Section III.F. describes FEMA's proposed
approach to implement the required changes.

A. Executive Order 11988, ``Floodplain Management''

    The President issued Executive Order 11988, (42 FR 26951, May 25,
1977) in furtherance of the National Flood Insurance Act of 1968, as
amended (42 U.S.C. 4001 et seq.); the Flood Disaster Protection Act of
1973, as amended (Pub. L. 93-234, 87 Stat. 975); and the National
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.).\1\
Executive Order 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. It requires each Federal agency to provide leadership and
take 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 in
carrying out its responsibilities for: (1) Acquiring, managing, and
disposing of Federal lands and facilities; (2) providing federally
undertaken, financed, or assisted construction and improvements; and
(3) conducting Federal activities and programs affecting land use,
including but not limited to water and related land resources planning,
regulating, and licensing activities. It states that each agency has a
responsibility to evaluate the potential effects of any actions it may
take in a floodplain; to ensure that its planning, programs, and budget
requests reflect consideration of flood hazards and floodplain
management; and to prescribe procedures to implement the policies and
requirements of the Executive Order.
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    \1\ The National Flood Insurance Act and the Flood Disaster
Protection Act establish a multi-purpose program to provide flood
insurance, minimize the damage caused by flood losses, and guide the
development of proposed construction, where practicable, away from
floodplains. NEPA requires Federal agencies to analyze the
environmental impacts of proposed actions and evaluate alternatives
to those actions, which includes the evaluation of floodplains.
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    In order to meet these requirements, each agency, before taking an
action, must determine whether the proposed action will occur in a
floodplain.\2\ Prior to being revised in 2015, Executive Order 11988
defined the word ``floodplain'' to include, at a minimum, the ``area
subject to a one percent or

greater chance of flooding in any given year.'' \3\ The Executive Order
defines agency ``action'' to include actions that the agency takes
directly (such as when a Federal agency builds a new facility for its
own operations) as well as actions that a non-Federal entity takes
using Federal funding (such as a State or local government building a
new facility using Federal grant funding).
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    \2\ Any action FEMA takes, including its provision of grants for
disaster assistance, first undergoes an analysis pursuant to
Executive Order 11988 (unless the action is specifically exempted
from the requirements of the Order). The grant recipient, therefore,
generally provides information to FEMA about the practicability of
alternatives outside the floodplain and other information to assist
in the analysis.
    \3\ This is also referred to as the 100-year floodplain or the
base floodplain.
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    If the action will occur in a floodplain, the agency must consider
alternatives to avoid adverse effects and incompatible development in
the floodplain. If the agency finds that the only practicable
alternative requires the action to occur in the floodplain, the agency
must, prior to taking the action, design or modify the action in order
to minimize potential harm to or within the floodplain. Additionally,
the agency must prepare and circulate a notice containing an
explanation of why the action is proposed to be located in the
floodplain. Particularly relevant to FEMA, the Executive Order also
requires agencies to provide appropriate guidance to applicants for
grant funding to encourage them to evaluate the effects of their
proposals in floodplains prior to submitting grant applications.
    Executive Order 11988 requires agencies to prepare implementing
procedures in consultation with the Water Resources Council (WRC),\4\
FEMA, and the Council on Environmental Quality (CEQ). As noted, in
1978, the WRC issued ``Floodplain Management Guidelines,'' (1978
Guidelines), the authoritative interpretation of Executive Order
11988.\5\ The 1978 Guidelines provided a section-by-section analysis,
defined key terms, and outlined an 8-step decision-making process for
carrying out the directives of Executive Order 11988.
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    \4\ The Water Resources Council, established by statute (42
U.S.C. 1962a-1), is charged with maintaining a continuing study and
preparing an assessment biennially, or at such less frequent
intervals as the Council may determine, of the adequacy of supplies
of water necessary to meet the water requirements in each water
resource region in the United States and the national interest
therein; and maintaining a continuing study of the relation of
regional or river basin plans and programs to the requirements of
larger regions of the Nation and of the adequacy of administrative
and statutory means for the coordination of the water and related
land resources policies and programs of the several Federal
agencies. It is responsible for appraising the adequacy of existing
and proposed policies and programs to meet such requirements, and
making recommendations to the President with respect to Federal
policies and programs.
    \5\ 43 FR 6030, Feb. 10, 1978. A PDF copy of the 1978 Guidelines
can be found at this link: http://portal.hud.gov/hudportal/documents/huddoc?id=DOC_14216.pdf.
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B. 44 CFR Part 9, ``Floodplain Management and Protection of Wetlands''

    FEMA promulgated regulations implementing Executive Order 11988 at
44 CFR part 9, ``Floodplain Management and Protection of Wetlands.''
\6\ Part 9 closely follows the 1978 Guidelines in setting forth FEMA's
policy and procedures for floodplain management relating to disaster
planning, response and recovery, and hazard mitigation. Part 9 applies
to FEMA disaster and non-disaster assistance programs, including Public
Assistance (PA), Individual Assistance (IA), Hazard Mitigation
Assistance (HMA), and grants processed by FEMA's Grant Programs
Directorate (GPD) (involving grants for preparedness activities).
Pursuant to section 8 of Executive Order 11988, Part 9 does not apply
to assistance provided for emergency work essential to save lives and
protect property and public health and safety, performed pursuant to
sections 403 and 502 of the Robert T. Stafford Disaster Relief and
Emergency Assistance Act, as amended (42 U.S.C. 5170b and 5192). In
addition, FEMA does not apply Part 9 to non-grant, site-specific
actions under the National Flood Insurance Program (NFIP),\7\ such as
the issuance of individual flood insurance policies, the adjustment of
claims, or the issuance of individual flood insurance maps. FEMA does
not apply Part 9 to site-specific actions under the NFIP because the
establishment of programmatic criteria, rather than the application of
the programmatic criteria to individual situations, is the action with
the potential to influence/affect floodplains.\8\
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    \6\ 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.'' See 42 FR 26961, May 25, 1977.
    \7\ A complete list of FEMA programs to which part 9 does not
apply appears at 44 CFR 9.5. The exemption for actions under the
NFIP is located at 44 CFR 9.5(f).
    \8\ For example, part 9 requires FEMA to apply the 8-step
process to a programmatic determination of categories of structures
to be insured, but does not require FEMA to apply an 8-step review
to a determination of whether to insure each individual structure.
See 45 FR 59520, Sept. 9, 1980 (59523).
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    As noted, Part 9 outlines the 8-step decision-making process FEMA
follows in applying Executive Order 11988 to its actions:
    Step (1) Floodplain determination (44 CFR 9.7). Under Step 1, FEMA
must determine if a proposed agency action is located in or affects the
base floodplain (or, for critical actions, the 500-year floodplain).
The base floodplain is the area subject to inundation by the base
flood, which is that flood which has a 1 percent chance of occurrence
in any given year (also known as the 1 percent annual chance flood or
100-year flood). A ``critical action'' is any activity for which even a
slight chance of flooding would be too great.\9\ The minimum floodplain
of concern for critical actions is 500-year floodplain, which is the
area subject to inundation from a flood having a 0.2 percent chance of
occurring in any given year. The 500-year floodplain generally covers a
larger area than the base floodplain. FEMA's regulations state that in
each instance where the 8-step process refers to the base floodplain,
an agency should substitute the 500-year floodplain for the base
floodplain if the proposed action is a critical action.
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    \9\ The concept of critical actions evolved during the drafting
of the 1978 Guidelines and reflects a concern that the impacts of
floods on human safety, health, and welfare for many activities
could not be minimized unless a higher degree of protection than the
base flood was provided. See Interagency Task Force on Floodplain
Management, Further Advice on Executive Order 11988 Floodplain
Management (1980) available at http://www.gsa.gov/graphics/pbs/FEDERAL_EMERGENCY_MANAGEMENT_AGENCY_R2F-a8-k_0Z5RDZ-i34K-pR.pdf.
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    FEMA follows a specific regulatory sequence in order to make its
floodplain determination. First, FEMA must consult the Flood Insurance
Rate Map (FIRM), the Flood Boundary Floodway Map (FBFM), and the Flood
Insurance Study (FIS) for the area. A FIRM is an official, detailed map
issued by the NFIP, showing elevations and boundaries of the 1 percent
annual chance floodplain and the 0.2 percent annual chance
floodplain.\10\ The FBFM is a version of a flood map that shows only
the floodway \11\ and flood boundaries. An FIS report is an
examination, evaluation and determination of flood hazards and, if
appropriate, corresponding water surface elevations. If a FIRM is not
available, FEMA must obtain a Flood Hazard Boundary Map (FHBM) which is
a less detailed map than a FIRM and shows the approximate areas of the
base floodplain. If data on flood elevations, floodways, or coastal
high hazard areas are needed, or if the map does not delineate the
flood hazard boundaries in the vicinity of the proposed site, FEMA must
seek detailed information from a list of sources included in the

regulations. See 44 CFR 9.7(c)(1)(ii). If the sources listed do not
have or know of detailed information and are unable to assist in
determining whether or not the proposed site is in the base floodplain,
FEMA must seek the services of a licensed consulting engineer
experienced in this type of work. If, however, a decision involves an
area or location within extensive Federal or State holdings or a
headwater area, and no FIS, FIRM, FBFM, or FHBM is available, FEMA will
seek information from the land administering agency before seeking
information and/or assistance from the list of sources included in the
regulations. Then, if none of the sources listed has information or can
provide assistance, FEMA will seek the services of an experienced
Federal or other engineer.
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    \10\ FEMA estimates that only 18 percent of mapped flood zones
have detailed floodplain boundaries of the 0.2 percent annual chance
floodplain.
    \11\ The floodway is the channel of a river or other watercourse
and the adjacent land areas that must be reserved in order to
discharge the base flood without cumulatively increasing the water
surface elevation more than a designated height. See 44 CFR 59.1.
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    Step (2) Early public review (44 CFR 9.8). FEMA must make public
its intent to locate a proposed action in the base floodplain. FEMA
must provide adequate information to enable the public to have an
impact on the decision outcome for all proposed actions having
potential to affect, adversely, or be affected by floodplains. For each
action having national significance for which notice is provided, FEMA
uses the Federal Register as the minimum means for notice, and will
provide notice by mail to national organizations reasonably expected to
be interested in the action. 44 CFR 9.8(c)(5) describes the contents of
the public notice, such as a description of the action, the degree of
hazard involved, a map of the area, or other identification of the
floodplain, and identification of the responsible agency official.
    Step (3) Practicable alternatives (44 CFR 9.9). If the action is in
the floodplain, FEMA will identify and evaluate practicable
alternatives to carrying out a proposed action in floodplains,
including the following: Alternative sites outside the floodplain;
alternative actions which serve essentially the same purpose as the
proposed action, but which have less potential to affect or be affected
by the floodplain; and ``no action.'' The floodplain site itself must
be a practicable location in light of the other factors. Under 44 CFR
9.9(c), FEMA will analyze several factors in determining the
practicability of the alternatives described in 44 CFR 9.9(b), namely
natural environment, social concerns, economic aspects, and legal
constraints. 44 CFR 9.9(d) states that FEMA will not locate the
proposed action in the floodplain, if a practicable alternative exists
outside the floodplain or wetland. For critical actions, FEMA will not
locate the proposed action in the 500-year floodplain, if a practicable
alternative exists outside the 500-year floodplain. Even if no
practicable alternative exists outside the floodplain, in order to
carry out the action the floodplain or wetland must itself be a
practicable location in light of the review required under Step 3.
    Step (4) Impact of chosen alternative (44 CFR 9.10). FEMA must
identify if the action has impacts in the floodplain or directly or
indirectly supports floodplain development that has additional impacts
in the floodplain. If the proposed action is outside the floodplain and
has no identifiable impacts or support, the action can be implemented
(Step 8). 44 CFR 9.10(b) provides that FEMA will identify the potential
direct and indirect adverse impacts associated with the occupancy and
modification of floodplains and the potential direct and indirect
support of floodplain development that could result from the proposed
action. FEMA's identification of such impacts shall be to the extent
necessary to comply with the requirements of Executive Order 11988 to
avoid floodplain locations unless they are the only practicable
alternatives and to minimize harm to and within floodplains and
wetlands.
    Step (5) Minimize impacts (44 CFR 9.11). If the proposed action has
identifiable impacts in the base floodplain or directly or indirectly
supports development in the floodplain, FEMA must minimize these
effects and restore and preserve the natural and beneficial floodplain
values served by floodplains. 44 CFR 9.11(b) states generally that FEMA
will design or modify its actions so as to minimize harm to or within
the floodplain; will minimize destruction, loss, or degradation of
wetlands; will restore and preserve natural and beneficial floodplain
values; and will preserve and enhance natural and beneficial wetland
values. Pursuant to 44 CFR 9.11(c), FEMA will more specifically
minimize potential harm to lives and the investment at risk from the
base flood, or, in the case of critical actions, from the 500-year
flood; potential adverse impacts the action may have on others; and
potential adverse impacts the action may have on floodplain values.
Pursuant to 44 CFR 9.11(d), FEMA will not allow new construction or
substantial improvement in a floodway, and will not allow new
construction in a coastal high hazard area, except for a functionally
dependent use \12\ or a structure or facility which facilitates an open
space use. For a structure which is a functionally dependent use, or
which facilitates an open space use, FEMA will not allow construction
of a new or substantially improved structure in a coastal high hazard
area unless it is elevated on adequately anchored pilings or columns,
and securely anchored to such piles or columns so that the lowest
portion of the structural members of the lowest floor (excluding the
pilings or columns) is elevated to or above the base flood level (the
500-year flood level for critical actions) (including wave height).
Regarding elevation of structures, 44 CFR 9.11(d)(3) states that there
will be no new construction or substantial improvement of structures
unless the lowest floor of the structures (including basement) is at or
above the level of the base flood, and there will be no new
construction or substantial improvement of structures involving a
critical action unless the lowest floor of the structure (including the
basement) is at or above the level of the 500-year flood.
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    \12\ A functionally dependent use means a use which cannot
perform its intended purpose unless it is located or carried out in
close proximity to water (e.g., bridges and piers). See 44 CFR 9.4.
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    Step (6) Reevaluate alternatives (44 CFR 9.9). FEMA must reevaluate
the proposed action. Pursuant to 44 CFR 9.9(e), upon determination of
the impact of the proposed action to or within the floodplain and of
what measures are necessary to comply with the requirement to minimize
harm to and within the floodplains, FEMA will determine whether: the
action is still practicable at a floodplain site in light of the
exposure to flood risk and the ensuing disruption of natural values,
the floodplain site is the only practicable alternative, there is a
potential for limiting the action to increase the practicability of
previously rejected non-floodplain sites and alternative actions, and
minimization of harm to or within the floodplain can be achieved using
all practicable means. Pursuant to 44 CFR 9.9(e)(2), FEMA will take no
action in a floodplain unless the importance of the floodplain site
clearly outweighs the requirement of Executive Order 11988 to avoid
direct or indirect support of floodplain development; reduce the risk
of flood loss; minimize the impact of floods on human safety, health,
and welfare; and restore and preserve floodplain values.
    Step (7) Findings and public explanation (44 CFR 9.12). If FEMA
finds that the only practicable alternative is to take the action in
the floodplain, it must give public notice of the reasons for this
finding. 44 CFR

9.12(e) describes the requirements for the content of such notice, such
as a statement of why the proposed action must be located in an area
affecting or affected by a floodplain or wetland, a description of all
significant facts considered in making this determination,
identification of the responsible official, and a map of the relevant
area.
    Step (8) Implementation (Multiple sections of 44 CFR and applicable
program guidance). FEMA may implement the proposed action after it
allows a reasonable period for public response and reviews the
implementation and post-implementation to ensure compliance with the
minimization standards in 44 CFR 9.11. Implementation of the
requirements of Executive Order 11988 is integrated into the specific
regulations and procedures of the grant program under which the action
is proposed to take place. After the proposed action is implemented,
the FEMA program providing the funding determines, under its applicable
regulations and procedures, whether the grant recipient has completed
the prescribed mitigation.

C. Reevaluation of the 1 Percent Chance or 100-Year Flood Standard

    In the aftermath of Hurricane Sandy, the President issued Executive
Order 13632,\13\ which created the Federal Interagency Hurricane Sandy
Rebuilding Task Force (Sandy Task Force). The Sandy Task Force was
chaired by the Secretary of the Department of Housing and Urban
Development (HUD), which led the effort in coordination with multiple
Federal partners. The Sandy Task Force was supported by an advisory
group composed of State, local, and Tribal elected leaders. Pursuant to
direction from Executive Order 13632 to remove obstacles to resilient
rebuilding, the Sandy Task Force reevaluated the 1 percent chance/100-
year standard. In April 2013, the Sandy Task Force announced a new
Federal flood risk reduction standard which required elevation or other
flood-proofing to 1 foot above \14\ the best available and most recent
base flood elevation and applied that standard to all Federal disaster
recovery investments in Sandy-affected communities.\15\ The Sandy Task
Force called for all major Sandy rebuilding projects in Sandy-affected
communities using Federal funding to be elevated or otherwise flood-
proofed according to this new flood risk reduction standard.
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    \13\ 77 FR 74341, Dec. 14, 2012.
    \14\ This is also known as ``freeboard.'' ``Freeboard'' is a
factor of safety usually expressed in feet above a flood level for
purposes of floodplain management. Freeboard tends to compensate for
the many unknown factors that could contribute to flood heights
greater than the height calculated for a selected size flood and
floodway conditions, such as wave action, bridge openings, and the
hydrologic effect of urbanization of the watershed. See
www.fema.gov/freeboard.
    \15\ HUD release entitled, ``Federal Government Sets Uniform
Flood Risk Reduction Standard for Sandy Rebuilding Projects,'' April
4, 2013.
---------------------------------------------------------------------------

    In May 2013, DHS issued the National Mitigation Framework (NMF) to
establish a common platform and forum for coordinating and addressing
how the Nation manages risk through mitigation capabilities.\16\ The
NMF established the Mitigation Framework Leadership Group (MitFLG) to
promote coordination of mitigation efforts across the Federal
Government. Its goal is broader than the goal of the Sandy Task Force,
as it focuses on enabling achievement of a secure and resilient Nation
by developing, employing and coordinating core mitigation capabilities
to reduce the loss of life and property. The MitFLG is responsible for
assessing the effectiveness of mitigation core capabilities as they are
developed and deployed across the Nation. The MitFLG facilitates
information exchange, coordinates policy implementation recommendations
on national-level issues, and oversees the successful implementation of
the NMF. The MitFLG is composed of representatives from the Department
of Agriculture, the Department of Commerce, the Department of Defense,
the Department of Energy, the Environmental Protection Agency, the
General Services Administration, the Department of Health and Human
Services, DHS, HUD, the Department of the Interior, the Department of
Justice, the Small Business Administration, and the Department of
Transportation. FEMA also chairs the MitFLG.\17\
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    \16\ Department of Homeland Security, National Mitigation
Framework (2013), available at http://www.fema.gov/media-library-data/20130726-1914-25045-9956/final_national_mitigation_framework_20130501.pdf. Mitigation reduces
the impact of disasters by supporting protection and prevention
activities, easing response, and speeding recovery to create better
prepared and more resilient communities. This Framework describes
mitigation roles across the whole community.
    \17\ See National Mitigation Framework, p. 30.
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    In June 2013, the President issued a Climate Action Plan \18\ that
directs agencies to take appropriate actions to reduce risk to Federal
investments, specifically directing agencies to build on the work done
by the Sandy Task Force and to update their flood risk reduction
standards for ``federally-funded . . . projects'' to ensure that
``projects funded with taxpayer dollars last as long as intended.''
\19\ In November 2013, the President's State, Local, and Tribal Leaders
Task Force on Climate Preparedness and Resilience (Climate Task Force)
convened, with 26 Governors, mayors, and local and Tribal leaders
serving as members. After a year-long process of receiving input from
State, local, Tribal, and territorial governments; private businesses;
trade associations; academic organizations; civil society; and other
stakeholders, the Task Force provided a recommendation to the President
in November 2014. In order to ensure resiliency, Federal agencies, when
taking actions in and around floodplains, should include considerations
of the effects of climate change, including sea level rise, more
frequent and severe storms, and increasing river flood risks. The
Climate Task Force also recommended that the best available climate
data should be used in siting and designing projects receiving Federal
funding, and that margins of safety, such as freeboard and setbacks,
should be included.\20\
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    \18\ Executive Office of the President, The President's Climate
Action Plan (2013), available at https://www.whitehouse.gov/sites/default/files/image/president27sclimateactionplan.pdf.
    \19\ See The President's Climate Action Plan at 15.
    \20\ President's State, Local, and Tribal Leaders Task Force on
Climate Preparedness and Resilience, Recommendations to the
President, (2014), available at http://www.whitehouse.gov/sites/default/files/docs/task_force_report_0.pdf at 7.
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D. Issuance of Executive Order 13690 and the Federal Flood Risk
Management Standard, and Revision of the 1978 Guidelines

    The MitFLG developed the FFRMS reflecting the best available
science, lessons learned, and input and recommendations gathered from
the Sandy Task Force, the Climate Action Plan, and the Climate Task
Force. As a result of MitFLG's efforts, on January 30, 2015, the
President issued Executive Order 13690, ``Establishing a Federal Flood
Risk Management Standard (FFRMS) and a Process for Further Soliciting
and Considering Stakeholder Input.'' \21\ Executive Order 13690 amended
Executive Order 11988 and established the FFRMS. It also set forth a
process by which additional input from stakeholders is solicited and
considered before agencies implement the FFRMS. It required FEMA to
publish, on behalf of the MitFLG, an updated version of the
Implementing Guidelines (revised to incorporate the changes required by
Executive Order 13690 and the FFRMS) in the Federal Register for notice
and comment. After receipt and adjudication of comments, Executive
Order 13690 required the MitFLG to submit to the WRC

recommendations for finalizing the draft Guidelines. Finally, Executive
Order 13690 required the WRC to issue final Guidelines to provide
guidance to agencies on the implementation of Executive Order 11988, as
amended, consistent with the FFRMS. After the completion of this
process, Executive Order 13690 directs agencies to issue or amend their
existing regulations and procedures to comply with the Order. The
MitFLG is required to reassess the FFRMS annually, after seeking
stakeholder input, and provide recommendations to the WRC to update the
FFRMS if warranted. The WRC is required to update the FFRMS at least
every 5 years.
---------------------------------------------------------------------------

    \21\ 80 FR 6425 Feb. 4, 2015.
---------------------------------------------------------------------------

    FEMA, on behalf of MitFLG, published a Federal Register notice for
a 60-day notice and comment period seeking comments on a draft of the
Revised Guidelines on February 5, 2015.\22\ In response to multiple
requests, the MitFLG later extended the comment period for an
additional 30 days to end on May 6, 2015.\23\ Periodically during the
public comment period, the Administration (through FEMA and CEQ) sent
advisories to representatives from Governors' offices nationwide
announcing the issuance of Executive Order 13690 and inviting comments
on the draft Revised Guidelines. The Administration also attended or
hosted over 25 meetings across the country with State, local, and
Tribal officials (including 26 mayors) and interested stakeholders to
discuss Executive Order 13690 and the draft Revised Guidelines. The
MitFLG held 9 public listening sessions across the country \24\ that
were attended by over 700 participants from State, local, and Tribal
governments and other stakeholder organizations to facilitate feedback
on the draft Revised Guidelines. The MitFLG published notice of these
public listening sessions in the Federal Register.\25\
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    \22\ 80 FR 6530, Feb. 5, 2015.
    \23\ 80 FR 16018, Mar. 26, 2015.
    \24\ The meetings were held in Iowa, Mississippi, California,
Virginia (Hampton Roads), Virginia (Fairfax), New York, Texas,
Washington, and via webinar.
    \25\ 80 FR 19090, Apr. 9, 2015.
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    The public comment period closed on May 6, 2015. The MitFLG
received over 2700 \26\ comments. The MitFLG adjudicated the comments
and presented its recommendations to the WRC, as required by Executive
Order 13690. The WRC issued the final Revised Guidelines on October 8,
2015.\27\ The Revised Guidelines contain an updated version of the
FFRMS (located at Appendix G of the Revised Guidelines), reiterate key
concepts from the 1978 Guidelines, and explain the new concepts
resulting from the Executive Order 13690 and the FFRMS. In response to
public comments, the FFRMS was updated to clarify the distinction
between actions and Federally Funded Projects.
---------------------------------------------------------------------------

    \26\ The MitFLG received approximately 556 separate submissions,
which raised over 2700 separate issues and positions. Written
comments were received at a series of 8 in-person listening sessions
across the country (135 submissions); verbal comments were shared
during the public comment periods of these same listening sessions
(74 commenters); comments were submitted through the FFRMS email
address (20 submissions); comments were submitted through
regulations.gov (326 submissions); and comments were submitted as
part of a petition of support (1 submission).
    \27\ Available in the docket for this rulemaking at
www.regulations.gov under Docket ID FEMA-2015-0006.
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E. Substantive Components of the FFRMS

    The FFRMS is a flexible framework to increase resilience against
flooding and help preserve the natural values of floodplains.
Incorporating this standard into existing agency processes will 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 will last as long as intended. In
addition, the FFRMS encourages the use of natural features and nature-
based approaches in the development of alternatives for all Federal
actions.
    Under the FFRMS, an agency may establish the floodplain for
Federally Funded Projects using any of the following approaches: (1)
Climate-Informed Science Approach (CISA): Utilizing the best-available,
actionable hydrologic and hydraulic data and methods that integrate
current and future changes in flooding based on climate science; (2)
Freeboard Value Approach (FVA): Freeboard (base flood elevation + X,
where X is 3 feet for critical actions and 2 feet for other actions);
(3) 0.2 percent annual chance Flood Approach (0.2PFA): 0.2 percent
annual chance flood (also known as the 500-year flood); or (4) the
elevation and flood hazard area that result from using any other method
identified in an update to the FFRMS.\28\ Each of the approaches is
described in further detail below.
---------------------------------------------------------------------------

    \28\ See Executive Order 13690 Section 2(i), 80 FR 6425, Feb. 4,
2015 (6426).
---------------------------------------------------------------------------

FFRMS Approach 1: CISA
    The FFRMS states that the CISA is the preferred approach, and that
Federal agencies should use this approach when data to support such an
analysis are available. For areas vulnerable to coastal flood hazards,
the CISA includes the regional sea-level rise variability and lifecycle
of the Federal action. This includes use of the Department of
Commerce's National Oceanic and Atmospheric Administration's (NOAA's)
or similar global mean sea-level-rise scenarios. These scenarios would
be adjusted to the local relative sea-level conditions and would be
combined with surge, tide, and wave data using state-of-the-art science
in a manner appropriate to policies, practices, criticality, and
consequences (risk).\29\ For areas vulnerable to riverine flood hazards
(i.e., flood hazards stemming from a river source), the CISA would
account for changes in riverine conditions due to current and future
changes in climate and other factors such as land use, by applying
state-of-the-art science in a manner appropriate to policies,
practices, criticality, and consequences (risk).
---------------------------------------------------------------------------

    \29\ The Revised Guidelines expand further upon the methods for
calculating sea-level rise for areas vulnerable to coastal flood
hazards in Section II (C) of Appendix H, ``Climate-Informed Science
Approach and Resources.''
---------------------------------------------------------------------------

    The CISA for critical actions would utilize the same methodology as
used for non-critical actions that are subject to Executive Order
11988, but with an emphasis on criticality as one of the factors for
agencies to consider when conducting the analysis.
FFRMS Approach 2: FVA
    The FFRMS defines freeboard values as an additional 2 feet added to
the base flood elevation, or, for critical actions, an additional 3
feet added to the base flood elevation. In other words, the floodplain
established by the FFRMS-FVA is the equivalent of the 1 percent annual
chance floodplain, plus either 2 or 3 feet of vertical elevation, as
applicable based on criticality, as well as a corresponding increase in
the horizontal extent of the floodplain. The increased horizontal
extent will not be the same in every case. As shown in the next two
illustrations, when the same vertical increase is applied in multiple
Federally Funded Projects in different areas, the amount of the
increase in the horizontal extent of the respective floodplains will
depend upon the topography of the area surrounding the proposed
location of the Federally Funded Project. FFRMS-FVA Illustration A
reflects an area with relatively flat topography on either side of the
flooding source (i.e., river or stream) channel. This is generally
representative of coastal plains, portions of the Midwest, and other
areas with less variation in topography. FFRMS-FVA Illustration B
reflects an area with steep topography on either side of the

flooding source channel. This is representative of mountainous areas or
areas with changes in elevation near the flooding source. With the same
addition of 2 feet to the base flood elevation applied to both example
locations, the increase to the horizontal extent of the floodplain in
FFRMS-FVA Illustration A is comparatively larger than the increase to
the horizontal extent of the floodplain in FFRMS-FVA Illustration B.
These illustrations visually depict the fact that the horizontal
increase to the floodplain will not be uniform when applying the same
increase to establish the FVA and will vary depending on local
topography.
BILLING CODE 9111-66-P
[GRAPHIC] [TIFF OMITTED] TP22AU16.011

[GRAPHIC] [TIFF OMITTED] TP22AU16.012

BILLING CODE 9111-66-C
FFRMS Approach 3: 0.2PFA
    Agencies may use available 0.2 percent annual chance (or ``500-
year'') flood data as the basis of the FFRMS elevation and
corresponding floodplain extent. The FFRMS notes that the 0.2 percent
annual chance flood hazard data produced by FEMA in coastal areas only
considers storm-surge hazards; these data do not include local wave
action or storm-induced erosion that are considered in the computation
of base flood elevations. The FFRMS encourages agencies to obtain or
develop the necessary data, including wave heights, to ensure that any
0.2 percent annual chance flood data applied will achieve an
appropriate level of flood resilience for the proposed investment.
FFRMS Approach 4: Update to FFRMS
    Executive Order 13690 requires the MitFLG to reassess the FFRMS
annually, after seeking stakeholder input, and provide recommendations
to the WRC to update the FFRMS if

warranted. It requires the WRC to update the FFRMS at least every 5
years.
Further Guidance on Application of the FFRMS Approaches To Establishing
the Floodplain
    The FFRMS states that when an agency does not use CISA in a coastal
flood hazard area, the agency must use, at a minimum, the applicable
FVA (i.e., the base flood elevation plus 3 feet for critical actions,
or the base flood elevation plus 2 feet for other actions). In cases
where the FEMA 0.2 percent annual chance flood elevation does not
include wave height, or a wave height has not been determined, the
FFRMS notes that the result will likely either be lower than the
current base flood elevation or the base flood elevation plus
applicable freeboard. The FFRMS states that the 0.2 percent annual
chance elevation should not be used in these cases.
    When actionable science is not available and an agency opts not to
follow the CISA for riverine flood hazard areas, the FFRMS states that
an agency may also select either the FVA, or 0.2 percent annual chance
flood elevation approach, or a combination of approaches, as
appropriate. It states that the agency is not required to use the
higher of the elevations, but may opt to do so.

F. FEMA's Implementation of Executive Order 13690 and FFRMS

    When Executive Order 13690 was issued, FEMA evaluated the
application of Executive Order 13690 and the FFRMS with respect to its
existing authorities and programs. The FFRMS establishes a flexible
standard to improve resilience against the impact of flooding--to
design for the intended life of the Federal investment. FEMA supports
this principle. With more than $260 billion in flood damages across the
Nation since 1980, it is necessary to take action to responsibly use
Federal funds, and FEMA must ensure it does not needlessly make
repeated Federal investments in the same structures after flooding
events. In addition, the FFRMS will help support the thousands of
communities across the Country that have strengthened their State and
local floodplain management codes and standards to ensure that
infrastructure and other community assets are resilient to flood risk.
FEMA recognizes that the need to make structures resilient also
requires a flexible approach to adapt for the needs of the Federal
agency, local community, and the circumstances surrounding each project
or action.
    FEMA intends to implement Executive Order 13690, the FFRMS, and the
Revised Guidelines through this proposed rule and supplementary policy,
which would (1) add or revise definitions to be consistent with those
included in Executive Order 13690 and the Revised Guidelines; (2)
incorporate the use of the FFRMS approaches for establishing the
floodplain into FEMA's existing 8-step process; and (3) include the
requirement to consider the use of nature-based approaches where
possible when developing alternatives for developing in the floodplain.
Making the Initial Floodplain Determination
    As stated above, Executive Order 13690 and the FFRMS changed the
definition of ``floodplain'' with respect to ``Federally Funded
Projects'' (i.e., actions involving the use of Federal funds for new
construction, substantial improvement, or to address substantial damage
to a structure or facility). The FFRMS allows the agency to define
``floodplain'' using any of three approaches. For actions which do not
meet the definition of a Federally Funded Project, an agency should
continue to use the historical definition of floodplain, i.e. the area
subject to a 1 percent or greater chance of flooding in any given year
(or the area subject to a 0.2 percent annual chance of flooding in any
given year for critical actions). This means that one of the first
steps an agency must take is to determine whether to use the FFRMS
definition of the floodplain or the historical definition of the
floodplain. Figure 1 illustrates the process by which FEMA would decide
which floodplain would apply to an action or FEMA Federally Funded
Project.
[GRAPHIC] [TIFF OMITTED] TP22AU16.013

Selection Between the FFRMS Approaches
    Executive Order 13690 requires the MitFLG to reassess the FFRMS
annually, after seeking stakeholder input, and provide recommendations
to the WRC to update the standard if warranted based on accurate and
actionable science that takes into account changes to climate and other
changes in flood risk. At a minimum, Executive Order 13690 requires an
update to the FFRMS at least every 5 years.\30\ This requires a
balancing approach in selecting between the FFRMS approaches: Agencies
must be flexible enough to account for updates to the FFRMS and yet
also implement a framework that is standardized enough to be easily
understood by and consistently applied to stakeholders.
---------------------------------------------------------------------------

    \30\ See Executive Order 13690 Section 4(b), 80 FR 6425, Feb. 4,
2015 (6426).
---------------------------------------------------------------------------

    Consistent with the flexibility built into Executive Order 13690,
FEMA proposes to implement the FFRMS by adopting the flexible framework
proposed in Executive Order 13690 in its entirety instead of mandating
a particular approach in its regulations. Under this proposal, FEMA
would provide additional guidance (more readily capable of revisions
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.
Specifically, FEMA's supplementary policy selects the use of the FFRMS-
FVA to establish the floodplain for non-critical actions. For critical
actions, FEMA would allow the use of the FFRMS-FVA floodplain or the
FFRMS-CISA, but only if the elevation established under the FFRMS-CISA
is higher than the elevation established under the FFRMS-FVA.
    FEMA proposes to use the FFRMS-FVA as the baseline approach for
both critical and non-critical FEMA Federally Funded Projects for
several reasons. First, a choice to use the FFRMS-FVA would reflect the
practical need for standardization at this stage of implementation. The
FFRMS-FVA elevation is computed using the 1 percent annual chance
elevation, and FEMA may use the same historical sequence it has
followed to determine the 1 percent annual chance elevation for the
purposes of establishing the FFRMS-FVA elevation. This would still
allow for the use of widely available FEMA products such as FIRMs,
FBFMs, and FISs. By following the same historical sequence and
utilizing known mapping products, FEMA staff would need relatively
minimal additional training to be able to use these products to
determine the horizontal extent of the FFRMS-FVA floodplain. In
addition, the familiarity of the process and products to be used in
most projects would benefit stakeholders by providing a consistent
methodology which stakeholders would similarly be able to use to
determine where FEMA will require application of the FFRMS. Second,
requiring the use of the FFRMS-FVA as the minimum elevation for
critical actions would be consistent with FEMA's policy to encourage
communities to adopt higher standards, including freeboard standards,
than the minimum floodplain management criteria under the NFIP.\31\
Generally, adoption of a freeboard tends to compensate for the many
unknown factors that could contribute to flood heights greater than the
height calculated for a selected size flood and floodway conditions,
such as wave action, bridge openings, and the hydrological effect of
urbanization of the watershed.\32\ Consistent with FEMA's policy, 22
States and an additional 596 localities have adopted freeboard
requirements ranging from 1 to 3 feet.\33\ FEMA supports that adoption
by requiring that all of its projects are consistent with more
restrictive Federal, State, or local floodplain management
standards.\34\
---------------------------------------------------------------------------

    \31\ See 44 CFR 60.1(d).
    \32\ See 44 CFR 59.1.
    \33\ Association of State Floodplain Managers, States and Other
Communities in FEMA CRS with Building Freeboard Requirements,
(2015), available at http://www.floods.org/ace-files/documentlibrary/FloodRiskMngmtStandard/States_with_freeboard_and_CRS_Communities_with_Freeboard_in_Other_states_2-27-15.pdf.
    \34\ See 44 CFR 9.11(d)(6).
---------------------------------------------------------------------------

    FEMA considered proposing the use of the FFRMS-CISA instead of
FFRMS-FVA to reflect the FFRMS's designation of the FFRMS-CISA as the
preferred approach and to reflect that the FFRMS-FVA sets a general
level of protection, whereas FFRMS-CISA uses a more site-specific
approach to predict flood risk based on future conditions.
    However, there are several reasons why that course of action is not
appropriate at this time. First, actionable climate data are not
currently available for all locations. For coastal floodplains, one of
the primary considerations associated with the FFRMS-CISA is
determining what the projected future sea level rise will be for the
area in which the project will be completed. There are multiple
interagency reports, published scientific journals, and agency tools
that provide scenario-based projections of sea level rise for coastal
floodplains. However, FEMA is not aware of an analogous approach for
riverine floodplains that accounts for uncertainties due to climate
change with respect to projected future precipitation and associated
flooding.\35\ Instead, the Revised Guidelines suggest the agency would
need to conduct a hydrology study that is informed by expected changes
in climate and land use factors and incorporate this analysis into its
current method for determining the floodplain.\36\ FEMA expects that
more data will be developed supporting broader-based inland and
riverine application of the FFRMS-CISA as agencies implement the FFRMS
and that this data will be considered and incorporated into future
updates of the FFRMS. FEMA requests comment on the availability of
actionable, planning, and project-scale climate data with respect to
coastal and riverine floodplains.
---------------------------------------------------------------------------

    \35\ See Revised Guidelines at Appendix H, 15.
    \36\ See Revised Guidelines at 55.
---------------------------------------------------------------------------

    Second, in addition to the data challenges, there are a number of
factors to be considered in deciding how to apply the FFRMS-CISA that
might result in a decision-making process that could unnecessarily
delay recovery in the wake of a disaster event for non-critical
actions. The Revised Guidelines recommend that the FFRMS-CISA
methodology account for project-specific factors such as the risk to
which the action will be exposed, the anticipated level of investment,
and the lifecycle of the action.\37\ For example, an applicant might
consider a construction project that is in a coastal floodplain and
find that there are multiple projections for what the sea level rise
may be in 100 years. The most aggressive projection might indicate that
the project should be elevated 10 feet above the 1 percent annual
chance flood elevation. However, the applicant might decide that this
project is not intended to be functional for 100 years or that the
applicant's budget might justify using a lesser projection now and plan
for future upgrades to the structure or facility. There may be a way to
standardize this type of decision-making process as the FFRMS-CISA is
more broadly used; however, the current lack of a standardized
methodology for making these decisions and the need to engage in such
project-specific considerations in conjunction with stakeholders could
result in uncertainty and delay. In light of the above concerns, FEMA
requests comment regarding how FEMA could implement

the FFRMS-CISA for non-critical actions using a publicly-accessible,
standardized, predictable, flexible, and cost-effective methodology.
---------------------------------------------------------------------------

    \37\ See Revised Guidelines at 55.
---------------------------------------------------------------------------

    FEMA also considered whether it should alter its proposal for use
of the FFRMS-CISA in relation to the FFRMS-FVA (or FFRMS-0.2PFA). FEMA
specifically welcomes comment on each of the potential alternatives
outlined below. FEMA could choose a more protective approach in which
it would determine the elevations established under FFRMS-CISA, FFRMS-
FVA and the FFRMS-0.2PFA for critical actions and only allow the
applicant to use the highest of the three elevations. This approach
would ensure that applicants were building to the most protective
level, would avoid potential inconsistencies with FEMA's policy to
encourage adoption of freeboard standards by local communities, and
would prevent a scenario where an applicant was allowed to build to a
lower elevation than previously required for critical actions under
FEMA's implementation of Executive Order 11988.\38\ FEMA believes that
its proposed policy is sufficiently protective and would be less
expensive to administer and implement than the alternative approach
described above, but nonetheless welcomes comment on this alternative
approach.
---------------------------------------------------------------------------

    \38\ There may be some areas of the country where application of
the FFRMS-CISA and the FFRMS-FVA could result in a lower elevation
than the FFRMS-0.2PFA which under existing regulations is the
elevation requirement for critical actions.
---------------------------------------------------------------------------

    Also alternatively, FEMA could choose to allow use of the FFRMS-
CISA, even if the resulting elevation is lower than the application of
the FFRMS-FVA. This approach would give FEMA and its grantees more
flexibility in implementing the standard, would enable FEMA and its
grantees to build to an elevation based on the best available science
taking criticality into account, and would provide a pathway to relief
for those areas that experience declining flood risks.\39\ FEMA
believes that the need for standardization, administrability, and
adequate protection all counsel in favor of its policy, but welcomes
comments on this alternative approach as well.
---------------------------------------------------------------------------

    \39\ While FEMA believes that the average flood risk will
generally continue to increase nationwide due to climate change,
there is considerable uncertainty in projecting flood risk at more
granular levels. Some areas may experience declines in flood risk
due to reduced rainfall or other unpredictable changes to the
floodplain.
---------------------------------------------------------------------------

    FEMA is not proposing to use the FFRMS-0.2PFA because of the
limited national availability of information on the 0.2 percent annual
chance flood elevation and the additional costs associated with
producing this information when not available. The FFRMS-0.2PFA
floodplain, like the FFRMS-FVA floodplain, would have a greater
horizontal extent and require higher elevation standards when compared
to the 1 percent annual chance floodplain. However, while most areas of
the country have 1 percent annual chance floodplain information and the
necessary topographical information to determine the horizontal extent
under the FVA, far fewer are mapped with 0.2 percent annual chance
floodplain information. This is because although all FEMA-mapped flood
zones have either detailed or approximate 1 percent annual chance
floodplain boundaries, FEMA estimates that only 18 percent of mapped
flood zones have detailed floodplain boundaries of the 0.2 percent
annual chance floodplain.\40\ Finally, in coastal areas, the FFRMS
requires Federal agencies to use the FFRMS-FVA as the minimum
elevation, when not using the FFRMS-CISA, because the 0.2 percent
annual chance flood information depicted on FEMA FIRMs and in the FISs
in coastal areas consider storm-surge hazards, but not wave action.\41\
FEMA recognizes that the FFRMS-0.2PFA may result in a higher elevation
than the FFRMS-FVA in some circumstances. However, based on the
foregoing reasons, FEMA expects it will be clearer, less costly, and
provide more certainty to stakeholders, if FEMA selects the FFRMS-FVA
as the primary approach.
---------------------------------------------------------------------------

    \40\ FEMA riverine flood hazard data inventory information comes
from the Coordinated Needs Management Strategy dataset.
    \41\ See Revised Guidelines at 57.
---------------------------------------------------------------------------

    Based on the foregoing reasons, FEMA proposes to combine approaches
and use the FFRMS-FVA to establish the floodplain for non-critical
actions and allow the use of the FFRMS-FVA floodplain or the FFRMS-CISA
for critical actions, but only if the elevation established under the
FFRMS-CISA is higher than the elevation established under the FFRMS-
FVA. This proposal balances flexibility with standardization, is
consistent with FEMA's encouragement to communities to adopt higher
floodplain management standards, reflects the priority that FEMA places
on ensuring adequate planning for critical actions, and may yield
important lessons with respect to potential future applications of the
FFRMS-CISA.
    In addition to seeking comments on FEMA's proposed approach to
implementation generally, FEMA specifically seeks public comments on
the impact of the proposed elevation requirement on the accessibility
of covered facilities under the Fair Housing Act, the Americans with
Disabilities Act (ADA), the Architectural Barriers Act (ABA), and
Section 504 of the Rehabilitation Act of 1973. Elevating buildings as a
flood damage mitigation strategy will likely have a negative impact on
affected communities' disabled and elderly populations, unless those
buildings are made accessible. Although all ADA title II and III
facilities, ABA facilities, and Section 504 covered facilities are
subject to accessibility requirements, single-family properties are
generally not subject to accessibility requirements unless they are
public housing (ADA title II) or a social service establishment (ADA
title III). Consequently, even if the homes of people with disabilities
are made accessible, a community's single- and multi-family housing
stock may become largely inaccessible through elevation requirements.
If the only accessible homes in a community are those currently
occupied by people with disabilities, those people will likely be
isolated. As occupants age or become disabled, they may have no option
to remain in their homes or to age in place because adding an
accessible route into an existing single- or multi-family building will
be costly or impossible. It is therefore crucial for community
sustainability and integration of people with disabilities that those
buildings that are subject to accessibility requirements be made to
comply.
    In light of the substantial community impact of elevating housing
and other buildings, along with the challenges associated with the
traditional options for making elevated buildings accessible (i.e.,
elevators, lifts, and ramps), FEMA invites comments on strategies it
could employ to increase the accessibility of properties so affected in
the event the proposed increase in elevation is adopted. Additionally,
FEMA invites comments on the cost and benefits of such strategies,
including data that supports the costs and benefits.
Determining the Corresponding Horizontal Extent of the FFRMS Floodplain
    Once an agency has made the determination that an action is a
Federally Funded Project that requires use of the FFRMS floodplain, and
then made a determination which of the FFRMS approaches to apply, the
agency must then decide where the FFRMS floodplain lies. There are no
federally produced maps depicting the boundary of the FFRMS-floodplain
established by the FVA or CISA, and FEMA maps depicting the 0.2 percent
annual

floodplain are only available in some areas. However, a map of the
FFRMS floodplain is not required to determine if the location of a
proposed Federally Funded Project is within the FFRMS floodplain. The
floodplain determination can generally be made by comparing the ground
elevation at the proposed site to the elevation established using the
applicable FFRMS approach. If the ground elevation is less than the
FFRMS elevation, than the site is in the FFRMS floodplain. Therefore,
in order to complete the floodplain determination, FEMA intends to rely
on two-dimensional information on a map to determine the location of
the proposed site relative to the FFRMS floodplain. To do so, FEMA will
need point information on (1) the FFRMS elevation and (2) the ground
elevation of the proposed site. Once FEMA establishes the FFRMS
elevation and the ground elevation based on available information, FEMA
would compare the two values to determine if the proposed FEMA
Federally Funded Project location is in the FFRMS floodplain.
Establishing the FFRMS Elevation Under Each of the Approaches
    In order to make the floodplain determination and establish the
proper elevation under each approach, FEMA intends to leverage its
existing processes in each of its grant programs for ensuring
compliance with Executive Order 11988. Although the specifics of the
processes may vary somewhat from program to program, FEMA generally
uses the following steps. During the initial stages of project
development, FEMA informs applicants of all applicable Federal, State
and local requirements which might apply to their projects to include
Executive Order 11988 and the 8-step process. Once applicants have
identified potential projects, FEMA works with them to assess the
proposed project location and determine whether it is in the floodplain
and therefore whether it is necessary to apply the 8-step process. FEMA
is available to assist applicants with the 8-step process and FEMA
reviews the project application to ensure that the project scope of
work is in compliance with Executive Order 11988 requirements. FEMA
will continue to perform these steps in its implementation of Executive
Order 13690 and the FFRMS. When making the floodplain determination
under the FFRMS, FEMA intends to investigate what flood information is
available in order to select the best available information.\42\ FEMA
would rely on a range of available data to establish the FFRMS
elevation for each of the approaches.
---------------------------------------------------------------------------

    \42\ See Sec.  9.7(c)(1)(iii) of this proposed rule.
---------------------------------------------------------------------------

    The FFRMS-CISA elevation is established using the best available,
actionable climate-informed science. The Revised Guidelines provide
guidance to agencies on the application of the CISA approach in coastal
and riverine areas.\43\ In particular, FEMA will use Appendix H of the
Revised Guidelines titled ``Climate-Informed Science Approach and
Resources'' to guide its decision-making. Appendix H outlines guidance
on risk-based framing (i.e., how agencies may consider current and
future flood risks over the lifetime of the investment/project)
followed by specific considerations and methods to consider climate
change. Because the CISA uses a scenario-based analysis to establish an
elevation by assessing a range of possible future conditions and
considering the nature of the affected action, the anticipated
lifecycle of the action, and the tolerance for risk associated with the
action, use of the CISA would be based on project-specific decisions.
FEMA may consider information presented by the applicant or any other
Federal agency in this evaluation and will ultimately determine whether
the methodology is appropriate for the action being considered and
meets the relevant criteria.
---------------------------------------------------------------------------

    \43\ See the Revised Guidelines at Appendix H ``Climate-Informed
Science Approach and Resources.''
---------------------------------------------------------------------------

    FEMA recognizes that the FFRMS-CISA is a new and developing process
and that there is uncertainty in the considerations and factors that
will come up during an FFRMS-CISA analysis. As such, FEMA is not able
to develop an exhaustive set of regulatory criteria for determining
whether a given methodology or elevation is appropriate. However, FEMA
recognizes that regulatory transparency reduces uncertainty for its
grantees, and it will consider providing further guidance and
information in the future as the agency's experience in implementing
FFRMS-CISA grows.
    Appendix H of the Revised Guidelines provides the following
criteria to define the CISA, which FEMA will consider when developing
further guidance and information: (1) Uses existing sound science and
engineering methods (e.g., hydrologic and hydraulic analysis and
methodologies) as have historically been used to implement Executive
Order 11988, but supplemented with best available climate-related
scientific information when appropriate (depending on the agency-
specific procedures and type of federal action); (2) is consistent with
the climate science and related information found in the latest
National Climate Assessment report or other best-available, actionable
science; (3) combines information from different disciplines (e.g., new
perspectives from the atmospheric sciences, oceanographic sciences,
coastal sciences, and hydrologic sciences in the context of climate
change) in addition to traditional science and engineering approaches;
and, (4) includes impacts from projected land cover and land use
changes (which may alter hydrology due to increased impervious
surface), long-term coastal and/or riverine erosion, and vertical land
movement (for determining local changes to sea level) expected over the
lifecycle of the action.
    The FFRMS describes the FFRMS-FVA elevation as the addition of 2 or
3 feet to the 1 percent annual chance flood elevation. FEMA would
leverage the process described in 44 CFR 9.7(c)(1)(iii) to search for
the best available flood hazard information to establish the 1 percent
annual chance flood elevation. This process recognizes that information
on flood hazards at proposed sites may range from detailed data
obtained from FEMA flood studies, to information which approximates the
geographic area of the floodplain, to areas with no information. Where
FEMA has issued a detailed study, FEMA could obtain the 1 percent
annual chance flood elevation from the FIRM or FIS. In areas where FEMA
has issued a limited study, FEMA would then seek detailed information
from the list of sources in 44 CFR 9.7(c)(1)(iii)(B)(1)-(8).
    For example, where an effective FIRM displays a 1 percent annual
floodplain with limited detail, local sources such as a Floodplain
Administrator, Flood Control Districts, or Transportation departments
may have detailed information on file which was produced for
development within the floodplain, for watershed plans, or for
infrastructure designs. Where detailed information is not available
from FEMA studies or other sources, but approximate flood information
is available from a FEMA FIRM, FEMA may use simplified methods to
develop a 1 percent annual chance flood elevation as presented in FEMA
publication 265, entitled ``Managing Floodplain Development in
Approximate A zones: A Guide for Obtaining and Developing Base (100-
Year) Flood Elevations.'' \44\ A 1 percent

annual chance flood elevation developed using a simplified approach may
yield an acceptable level of accuracy for the purpose of establishing
whether a proposed FEMA Federally Funded Project is within the FFRMS-
FVA floodplain. Where no flood hazard information is available, or
where more accurate information on the 1 percent annual chance
elevation is necessary for the purposes of complying with other
sections of Part 9, such as Sec.  9.11, FEMA publication 265 also
provides guidance on detailed engineering methodologies to develop a 1
percent annual chance flood elevation. FEMA may rely on staff engineers
to complete the engineering analysis, or FEMA may rely on information
submitted as part of an application, where the applicant has obtained
design and engineering services to develop the project scope of work.
---------------------------------------------------------------------------

    \44\ FEMA, Managing Floodplain Development in Approximate Zone
A: A Guide for Obtaining and Developing Base (100-Year) Flood
Elevations (1995), available at https://www.fema.gov/media-library/assets/documents/1911.
---------------------------------------------------------------------------

    The FFRMS-0.2PFA elevation is the elevation of the 0.2 percent
annual chance flood. If FEMA were to use this approach in the future,
FEMA could follow the same process to establish the 0.2 percent annual
chance flood elevation as it would to establish the 1 percent annual
chance flood elevation. FEMA would first rely on the 0.2 percent annual
chance flood elevation reported in a FEMA FIS, then seek information
from additional sources, before finally seeking the assistance of an
engineer.
Establishing the Ground Elevation
    FEMA may use available topographic information from the USGS to
establish the ground elevation for a proposed location of a FEMA
Federally Funded Project. Additionally, FEMA may also rely on
information on the ground elevation submitted by an applicant as part
of their project application.

IV. Discussion of the Proposed Rule

    As noted above, this proposed rule would implement Executive Order
13690, the FFRMS, and the Revised Guidelines as part of FEMA's
floodplain management regulations. Below, we provide a brief summary of
a number of the major provisions of the proposed rule, followed by a
section-by-section description of these and other changes.
Major Provisions
Conforming Changes to Definitions
    FEMA proposes to amend Sec.  9.4 to reflect the new definitions
required by Executive Order 13690 and the FFRMS. As noted above, the
most significant definitional change introduced by Executive Order
13690 and the FFRMS is the change to the meaning of ``floodplain.'' As
discussed in more detail below, in order to harmonize this change in
Sec.  9.4 FEMA proposes to revise a number of existing definitions, and
remove other definitions. In addition, FEMA proposes to revise the
remaining sections of 44 CFR part 9 that refer generally to the
floodplain, or refer specifically to the base (or 100-year) floodplain
or the 500-year floodplain, for clarity.
Distinction Between ``FEMA Federally Funded Projects'' and Other FEMA
Actions
    As noted above, the first Step in the 8-step process is to
determine whether the proposed action is in the floodplain. Because
Executive Order 13690 and the October 8, 2015 version of FFRMS revise
the definition of the ``floodplain'' that must be used for ``Federally
Funded Projects,'' FEMA proposes to revise the first Step to require
FEMA to first determine whether the proposed action falls within the
definition of ``FEMA Federally Funded Project.'' Under the proposed
rule, if FEMA determines that the action is a FEMA Federally Funded
Project, i.e., if FEMA determines that the action uses FEMA funds for
new construction, substantial improvement, or to address substantial
damage to a structure or facility, the FFRMS floodplain applies. If, on
the other hand, FEMA determines that the action does not fall under the
definition of a FEMA Federally Funded Project, the 1 percent annual
chance floodplain (or the 0.2 percent annual chance floodplain for
critical actions) applies.
Emphasis on Nature-Based Approaches
    Executive Order 13690 requires that agencies use, where possible,
natural systems, ecosystem processes, and nature-based approaches in
the development of alternatives for Federal actions in the floodplain.
FEMA proposes to incorporate this requirement into Sec.  9.9, which
addresses the requirement to consider practicable alternatives when
determining whether to locate an action in the floodplain. This
requirement applies regardless of whether the proposed action is a FEMA
Federally Funded Project. To further explain this requirement, FEMA
proposes to add a definition of ``nature-based approaches,'' meaning
features designed to mimic natural processes and provide specific
services such as reducing flood risk and/or improving water quality.
Section-by-Section Analysis

A. Authority Citation

    FEMA proposes to add a reference to Executive Order 13690.

B. Section 9.1--Purpose of Part

    FEMA proposes to add ``as amended'' to reflect Executive Order
13690's amendment of Executive Order 11988.

C. Section 9.2--Policy

    FEMA proposes to add language to paragraph 9.2(b)(3) to reflect the
policy statement from Executive Order 13690 that the United States must
improve the resilience of communities and Federal assets against the
impacts of flooding based on the best-available and actionable science.
This statement of policy is complementary to the longstanding goals of
Executive Order 11988 to reduce the risk of flood loss, but reflects an
updated Federal policy of resilience and risk reduction that takes the
effects of climate change and other threats into account.

D. Section 9.3--Authority

    FEMA proposes to add reference to Executive Order 13690, which
amended Executive Order 11988.

E. Section 9.4--Definitions

    In Section 9.4, FEMA proposes to add terms for ``0.2 Percent Annual
Chance Flood,'' ``0.2 Percent Annual Chance Floodplain,'' ``1 Percent
Annual Chance Flood or Base Flood,'' ``1 Percent Annual Chance Flood
Elevation or Base Flood Elevation,'' ``1 Percent Annual Chance
Floodplain or Base Floodplain,'' ``Associate Administrator,''
``Emergency Work,'' ``Federal Flood Risk Management Standard (FFRMS),''
``Federal Flood Risk Management Standard Floodplain,'' ``FEMA Federally
Funded Project,'' FIMA, and ``Nature-Based Approaches;'' to remove the
definitions of ``Base Flood,'' ``Base Floodplain,'' ``Emergency
Actions,'' ``Five Hundred Year Floodplain,'' and ``Mitigation
Directorate;'' and to revise the definitions of ``Critical Action,''
``Floodplain,'' ``New Construction,'' ``Orders,'' and ``Substantial
Improvement.''
    0.2 Percent Annual Chance Flood. FEMA proposes to define the term
``0.2 percent annual chance flood'' to mean the flood which has a 0.2
percent chance of being equaled or exceeded in any given year. This was
previously known as the ``500-year flood.'' FEMA proposes to use the
term ``0.2 percent annual chance flood'' and discontinue using that
term interchangeably with the term ``500-year flood.'' The term ``500-
year flood'' can cause confusion as it

could be interpreted to mean that the area will only flood once every
500 years, instead of reflecting its true meaning, which is the annual
risk of flooding in the area.
    0.2 Percent Annual Chance Floodplain. FEMA proposes to define the
term ``0.2 percent annual chance floodplain'' to mean the area subject
to flooding by the 0.2 percent annual chance flood.
    1 Percent Annual Chance Flood or Base Flood. FEMA proposes to
retitle the current definition of ``base flood'' as ``1 percent annual
chance flood or base flood.'' This reflects the fact that Executive
Order 13690 uses the term ``base flood'' and the Revised Guidelines use
the term ``1 percent annual chance flood.'' There is no substantive
difference between the two terms and they may be used interchangeably.
The ``1 percent annual chance flood'' means the flood that has a 1
percent chance of being equaled or exceeded in any given year. In the
current definition of ``base flood,'' the term is also equated with the
``100-year flood;'' however, FEMA proposes to discontinue use of the
term ``100-year flood'' because this term can cause confusion. It can
be interpreted to mean that the area will only flood once every 100
years instead of reflecting its true meaning, which is the annual risk
of flood in the area.
    1 Percent Annual Chance Flood Elevation or Base Flood Elevation.
FEMA proposes to define the term ``1 percent annual chance flood
elevation or base flood elevation'' to mean the computed elevation to
which floodwater is anticipated to rise during the 1 percent annual
chance flood or base flood. FEMA also proposes to incorporate the
explanation from the current definition of ``base flood'' about how the
term is used in the NFIP to indicate the minimum level of flooding to
be used by a community in the community's floodplain management
regulations. The elevation indicates how high to elevate a structure in
order to protect it from the risk of flooding in a base flood.
    1 Percent Annual Chance Floodplain or Base Floodplain. FEMA
proposes to define the term ``1 percent annual chance floodplain or
base floodplain'' to mean the area subject to flooding by the 1 percent
annual chance flood or base flood. A floodplain is generally a lowland
or flat area near water that has a greater chance of flooding than
higher areas and areas farther from water. This definition would
describe the minimum area that FEMA looks at when it determines whether
an action will take place in a floodplain.
    Associate Administrator. FEMA proposes to define ``Associate
Administrator'' as the Associate Administrator of the Federal Insurance
and Mitigation Administration. This reflects the current title of this
position, and adding it to the definitions section allows for ease of
use throughout Part 9, rather than having to reprint the entire title
each time it is used.
    Base Flood and Base Floodplain. FEMA proposes to remove the
definitions of the ``base flood'' and ``base floodplain'' as FEMA
proposes to incorporate them in the definitions of the ``1 percent
annual chance flood or base flood'' and ``1 percent annual chance
floodplain or base floodplain.''
    Critical Action. FEMA proposes to revise the definition of
``critical action'' to remove the requirement that the minimum
floodplain of concern in the event of a critical action is the 500-year
floodplain. There would no longer be a set requirement that an
applicant use a particular approach to establishing the floodplain when
the project is a critical action. Instead, FEMA and the applicant would
follow the sequence described in Sec.  9.7 when making the floodplain
determination. FEMA would be required to determine whether the project
meets the new definition of ``FEMA Federally Funded Project'' in Sec.
9.4. If the project is a Federally Funded Project, then FEMA would
establish the floodplain by using one of the FFRMS approaches (which
require the applicant to consider whether an action is a critical
action). If the project is not a Federally Funded Project, then FEMA
would use, at a minimum, the 1 percent annual chance floodplain for
non-critical actions and the 0.2 percent annual chance floodplain for
critical actions.
    Emergency Work. The current definition of ``emergency actions'' is
emergency work essential to save lives and protect property and public
health and safety performed under certain sections of the Robert T.
Stafford Disaster Relief and Emergency Assistance Act (Stafford Act)
and corresponding FEMA regulations. FEMA proposes to change the term to
``emergency work'' to clearly differentiate between the work under the
specific sections of the Stafford Act that was exempted entirely from
the requirements of Executive Order 11988 and the new exceptions to the
application of the FFRMS (which include non-specific references to
emergency actions) created by Executive Order 13690. FEMA also proposes
to update the citations to the specific sections of the Stafford Act
and FEMA regulations, as the citations are outdated in the current
definition.
    Federal Flood Risk Management Standard (FFRMS). FEMA proposes to
add a definition of ``FFRMS,'' which is the Federal flood risk
management standard established by Executive Order 13690 to be
incorporated into existing processes used to implement Executive Order
11988. FEMA proposes to add a definition for FFRMS because this rule
proposes to implement it and therefore refers to it throughout the
proposed changes to Part 9.
    Federal Flood Risk Management Standard (FFRMS) Floodplain. FEMA
proposes to define the ``FFRMS floodplain'' consistent with the
definition in Executive Order 13690, which is the floodplain that is
established using one of four approaches: CISA, FVA, 0.2PFA, and the
elevation and flood hazard area that result from using any other method
identified in an update to the FFRMS.
    FEMA proposes to define the ``CISA'' as the elevation and flood
hazard area that result from using the best-available, actionable
hydrologic and hydraulic data and methods that integrate current and
future changes in flooding based on climate science. This approach will
also include an emphasis on whether the action is a critical action as
one of the factors to be considered when conducting the analysis.
    FEMA proposes to define the ``FVA'' as the elevation and flood
hazard area (the horizontal extent of the floodplain) that result from
using the freeboard value, reached by adding an additional 2 feet to
the base flood elevation for non-critical actions and by adding an
additional 3 feet to the base flood elevation for critical actions.
    FEMA proposes to define the ``0.2PFA'' as the area subject to
flooding by the 0.2 percent annual chance flood. The 0.2 percent annual
chance flood is a flood that has a 0.2 percent chance of happening in
any given year. It is a flood that covers greater area that is less
frequent than the 1 percent chance floodplain.
    Finally, FEMA proposes to add a fourth approach, the elevation and
flood hazard area that result from using any other method identified in
an update to the FFRMS.
    FEMA Federally Funded Project. FEMA proposes to add a definition of
``FEMA Federally Funded Project'' to mean actions where FEMA funds are
used for new construction, substantial improvement, or to address
substantial damage to a structure or facility. FEMA's proposed
definition mirrors the language in the FFRMS and the Revised
Guidelines.

    FIMA. FEMA proposes to revise the definition of the Federal
Insurance Administration to mean the Federal Insurance and Mitigation
Administration to reflect the current title of the organization.
    Five Hundred Year Floodplain. FEMA proposes to remove the
definition of the five hundred year floodplain as a standalone term and
designated floodplain and to instead substitute the term to 0.2 percent
annual chance floodplain. The 0.2 percent annual chance floodplain is
the floodplain covering an area where the chance of flood is 0.2
percent in any given year.
    Floodplain. FEMA currently defines ``floodplain'' as the lowland
and relatively flat areas adjoining inland and coastal waters
including, at a minimum, that area subject to a 1 percent or greater
chance of flooding in any given year. FEMA proposes to revise the
definition to remove the phrase ``including, at a minimum, the area
subject to a one percent or greater chance of flooding in any given
year.'' This is because the FFRMS expands the consideration from the 1
percent annual chance (base) floodplain.
    The current definition also states that wherever the term
``floodplain'' appears in Part 9, if a critical action is involved,
``floodplain'' means the area subject to inundation from a flood having
a 0.2 percent chance of occurring in any given year (500-year
floodplain). FEMA proposes to remove this provision from the definition
of floodplain because there is no longer a set requirement that an
applicant use a particular approach to establishing the floodplain when
there is a critical action. Instead, FEMA and the applicant must follow
the sequence described in Sec.  9.7 when making the floodplain
determination. FEMA must determine whether the project meets the new
definition of ``FEMA Federally Funded Project'' in Sec.  9.4. If the
project is a FEMA Federally Funded Project, then FEMA must establish
the floodplain by using one of the FFRMS approaches (which require the
applicant to consider whether an action is a critical action). If the
project does not meet the definition of FEMA Federally Funded Project
(i.e. the project is not ``new construction, substantial improvement,
or repairs to address substantial damage to a structure or facility''),
then FEMA must use, at a minimum, the 1 percent annual chance
floodplain for non-critical actions and the 0.2 percent annual chance
floodplain for critical actions.
    FEMA proposes to add that the floodplain may be more specifically
categorized as the 1 percent annual chance (base) floodplain, the 0.2
percent annual chance floodplain, or the FFRMS floodplain (as defined
above). ``Floodplain'' is a flexible, general term, but in establishing
the correct floodplain to use, it will be necessary to determine
whether the action is a Federally Funded Project and whether it is a
critical action.
    Mitigation Directorate. FEMA proposes to remove the definition of
the ``Mitigation Directorate'' as it is now included in the definition
of ``FIMA.''
    Nature-Based Approaches. FEMA proposes to add a definition of
``nature-based approaches.'' Executive Order 13690 added a provision
requiring agencies to use nature-based approaches where possible and
this term has not previously been defined. FEMA proposes to define
nature-based approaches as the features (sometimes referred to as
``green infrastructure'') designed to mimic natural processes and
provide specific services such as reducing flood risk and/or improving
water quality. Nature-based approaches are created by human design (in
concert with and to accommodate natural processes) and generally, but
not always, must be maintained in order to reliably provide the
intended level of service. Nature-based approaches are sometimes
referred to as green infrastructure and may include, for example, green
roofs, or downspout disconnection that reroutes drainage pipes to rain
barrels, cisterns, or permeable areas instead of the storm sewer. The
proposed definition mirrors the language of the WRC Revised Guidelines.
    New Construction. FEMA proposes to remove the parenthetical
``including the placement of a mobile home'' from the definition of new
construction because retaining the clause would have unintended
effects, given the new definition of FEMA Federally Funded Projects.
The application of the FFRMS is required for any action which meets the
definition of ``Federally Funded Project.'' ``FEMA Federally Funded
Project'' is defined as an action where FEMA funds are used for new
construction, substantial improvement, or to address substantial damage
to a structure or facility. If FEMA continued to define the placement
of a mobile home as ``new construction,'' it would be required to apply
the FFRMS to any placement of a mobile home. As described further in
the discussion of Sec.  9.13, FEMA does not intend to require the
application of the FFRMS in the placement of mobile homes for the
purpose of temporary housing.
    Orders. FEMA proposes to revise the definition of ``orders'' to
include Executive Order 13690.
    Substantial Improvement. FEMA proposes to update the reference to
the Stafford Act, because the citation is outdated in the current
definition.

F. Section 9.5--Scope

    FEMA proposes to add an effective date provision to this section,
indicating that the revisions proposed to Part 9, which implement the
changes required by Executive Order 13690 and the FFRMS, would apply to
new actions that are commenced on or after the effective date of the
final rule. This is to clarify that current Part 9, including use of
the base floodplain (or 500-year floodplain for critical actions),
would still apply to actions that are in the planning or development
stage or undergoing implementation as of the effective date of the
final rule revising Part 9. Only new actions would be subject to
revised Part 9 so that the changes would not be applied retroactively
to projects which have already been reviewed for compliance with
Executive Order 11988 and may have incurred designed expenses to meet
the current floodplain management standards. Any new actions would be
subject to revised Part 9, including the changes required under
Executive Order 13690 and the FFRMS, such as determining whether to use
the base floodplain or FFRMS floodplain for the action and using
nature-based approaches to mitigate harm when development in the
floodplain is not avoidable.
    FEMA proposes to update the citations to the Stafford Act sections
and references to organizations and titles in paragraphs (c)-(g) as
they are not current. FEMA also proposes to update paragraph (c)(8) as
it refers to a defunct title for the Individuals and Households program
and includes programs that no longer exist.
    FEMA also proposes to eliminate the cross references in the last
sentence of paragraph 9.5(f)(1), because they relate to regulatory
provisions (44 CFR 9.9(e)(6) and 9.11(e)(4)) that FEMA proposes to
remove in this rule. FEMA describes its rationale for eliminating the
cited text later in this preamble.

G. Section 9.6--Decision-Making Process

    Section 9.6 sets out the floodplain management and wetlands
protection decision-making process to be followed by FEMA in applying
Executive Orders 11988 and 11990 to its actions. There are eight Steps
the agency must follow. Step 1 states that FEMA will determine whether
the proposed action is located in the 100-year floodplain or, for
critical actions, the 500-year floodplain. FEMA

proposes to remove the specific requirement to use the 100-year (1
percent annual chance) floodplain or 500-year (0.2 percent annual
chance) floodplain for critical actions and instead use the general
term ``floodplain.'' Instead, FEMA proposes to refer the reader to
section 9.7(c) of the regulations, which describes (1) the flexible
framework that FEMA would apply to FEMA Federally Funded Project under
Executive Order 13690 and the FFRMS, as well as (2) the historical
framework that FEMA would continue to apply to actions that do not
qualify as FEMA Federally Funded Projects.

H. Section 9.7--Determination of Proposed Action's Location

    Paragraph (a) of section 9.7 states that the purpose of the section
is to establish FEMA's procedures for determining whether any action as
proposed is located in or affects the base floodplain (or the 500-year
floodplain for a critical action) or a wetland (i.e., Step 1 of the 8-
step decision-making process described in section 9.6). As in section
9.6, FEMA proposes to simply refer to ``floodplain'' rather than base
floodplain or 500-year floodplain, because Executive Order 13690 and
the FFRMS's flexible framework to determining which floodplain is
appropriate depending on the type and criticality of the action means
the floodplain must be established using the process set forth in
paragraph 9.7(c) and may be something other than the floodplain
established using the 1 percent annual chance flood or 0.2 percent
annual chance flood.
    Paragraph (b) of Sec.  9.7 states that information about the 100-
year and 500-year floods may be needed to comply with the regulations
in Part 9. FEMA proposes to update this statement to reflect that
information about the 1 percent annual chance (base) floodplain, 0.2
percent annual chance floodplain, and the FFRMS floodplain may be
needed.
    Paragraph (c) of Sec.  9.7 outlines the sequence FEMA must follow
in making the floodplain determination. FEMA proposes to implement the
change to the definition of floodplain required by Executive Order
13690 and the FFRMS in Sec.  9.7(c), ``Floodplain determination.'' As
an initial step, FEMA would determine whether the project is a FEMA
Federally Funded Project as defined in Sec.  9.4. If the project is a
FEMA Federally Funded Project, FEMA would establish the FFRMS
floodplain and associated flood elevation using one of the four
approaches outlined in the proposed section. For example, FEMA would
likely be required to apply the FFRMS floodplain to construction
projects under FEMA's Public Assistance program authorized under
Section 406 of the Stafford Act, Hazard Mitigation Grant Program
authorized under Section 404 of the Stafford Act, and Flood Mitigation
Assistance Program authorized under Section 1366 of the National Flood
Insurance Act. However, it is likely that certain other grant programs
or actions would not be required to apply the FFRMS floodplain, because
the actions funded do not involve construction activities. This may
include grants provided for disaster planning through FEMA's Pre-
Disaster Mitigation Program authorized under Section 203 of the
Stafford Act and grants for planning and training awarded through
programs administered by FEMA's Protection and National Preparedness
Office. Each grant program FEMA funds would be required to determine
whether the 1 percent annual chance, 0.2 percent annual chance, or
FFRMS floodplain applies to the particular action.
    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
proposal, FEMA would provide additional guidance (more readily capable
of revisions 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. Executive Order 13690 makes clear that the
intent of providing a flexible framework is to acknowledge that the
impacts of flooding are anticipated to increase over time due to the
effects of climate change and other threats. In order to determine what
those impacts may be, there is value in using the best-available,
actionable hydrologic and hydraulic data and methods that integrate
current and future changes in flooding based on climate science, rather
than relying solely upon the 1 percent annual chance flood standard,
which does not account for or provide any factor of safety to mitigate
against the possibility that flood risk may increase over time.
    Executive Order 13690 provides an exception to use of the FFRMS
when the action is in the interest of national security, where the
action is an emergency action, where application to a Federal facility
or structure is demonstrably inappropriate, or where the action is a
mission-critical requirement related to a national security interest or
an emergency action. FEMA proposes to adopt these exceptions in their
entirety. It is important to note that an exception to using the FFRMS
under any of the reasons listed in this section does not exempt the
action from the requirements of Executive Order 11988 altogether.
Instead, if one of FEMA's actions were excepted under this provision,
FEMA would still be required to apply the 1 percent annual chance
floodplain for non-critical actions and the 0.2 percent annual chance
floodplain for critical actions. FEMA does have the authority to exempt
certain actions from any application of the requirements of Executive
Order 11988 and those actions which are exempted are enumerated in
Section 9.5(c).
    FEMA proposes that if it determines that the action is not a FEMA
Federally Funded Project, i.e., that the action does not involve the
use of FEMA funds for new construction, substantial improvement, or to
address substantial damage to a structure or facility, the proposed
action may be evaluated using the 1 percent annual chance floodplain
for non-critical actions and the 0.2 percent annual chance floodplain
for critical actions. The sequence for making that determination
remains relatively unchanged. The Regional Administrator (RA) first
consults the FEMA FIRM, the FBFM and the FIS. If neither a FIRM nor a
FBFM is available, the RA consults the FHBM. The regulation provides a
list of sources to consult in the event the FHBM is not available. FEMA
proposes to update this list of sources to those suggested in the
Revised Guidelines, which were updated to reflect current titles and
new available resources.\45\ Finally, if none of these sources have the
information necessary to comply with the Orders, the RA seeks the
services of an engineer experienced in this type of work. If a decision
involves an area or location within extensive Federal or State holdings
or a headwater area, and no FIS, FIRM, FBFM, or FHBM is available, FEMA
seeks information from the land administering agency before seeking
information and/or assistance from the list of sources or an engineer.
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    \45\ FEMA proposes to update this list of sources to reflect the
WRC's Revised Guidelines.
---------------------------------------------------------------------------

    Additionally, FEMA is proposing to change the paragraph structure
of Sec.  9.7 for clarity.

I. Section 9.8--Public Notice Requirements

    The only proposed change is to paragraph 9.8(c)(5)(ii), to correct
a typographical error.

J. Section 9.9--Analysis and Reevaluation of Practicable Alternatives

    FEMA proposes to add the requirement to use natural systems,
ecosystem processes, and nature-based approaches in the development of
alternatives for Federal actions in the floodplain to Sec.  9.9(b).
Under Sec.  9.9, FEMA must make a preliminary determination (Step 3 of
the 8-step process) as to whether the floodplain is the only
practicable location for the action. Part of that analysis involves
considering whether there are alternative actions that serve
essentially the same purpose as the proposed action but which have less
potential to affect or be affected by a floodplain. Under this proposed
rule, during the course of the aforementioned analysis, FEMA would
consider whether using natural systems, ecosystem processes and nature-
based approaches might have less of an effect on the floodplain.
    FEMA proposes to remove paragraph (d)(2) of Sec.  9.9, which
prohibits FEMA from locating a proposed critical action in the 500-year
floodplain. This is because under this proposed rule, critical actions
would no longer be subject to a specific requirement related to the
500-year floodplain. Instead, FEMA would follow the sequence described
in Sec.  9.7 when making the floodplain determination. As noted above,
FEMA would determine whether the project meets the new definition of
``FEMA Federally Funded Project'' in Sec.  9.4. If FEMA determined that
the project is a FEMA Federally Funded Project, then FEMA would
establish the floodplain by using one of the FFRMS approaches (which
require the applicant to consider whether an action is a critical
action). If FEMA determined that the project is not a FEMA Federally
Funded Project, then FEMA would use, at a minimum, the 1 percent annual
chance floodplain for non-critical actions and the 0.2 percent annual
chance floodplain for critical actions. After FEMA completed that
process, it would apply the appropriate floodplain to the remainder of
the 8-step process. Therefore, FEMA proposes to revise paragraph (d)(1)
to specify that the ``floodplain'' is the floodplain established in
Sec.  9.7(c).
    FEMA proposes to eliminate paragraph 9.9(e)(6). Section 9.9(e)(6)
prohibits FEMA from providing a new or renewed contract for flood
insurance for a structure if the Regional Director has chosen the ``no
action'' option provided for in Sec.  9.9(e)(5). This provision was
temporarily suspended via a November 28, 1980 Federal Register Notice
of intent not to enforce certain regulation concerning denial of flood
insurance coverage. (45 FR 79069) FEMA ultimately did not ever
implement this provision and does not intend to do so now; therefore,
FEMA is proposing to remove it from the regulation.

K. Section 9.11--Mitigation

    FEMA proposes to remove the reference to the base flood and the
500-year flood from paragraph 9.11(c) and instead reference the
floodplain as established in Sec.  9.7(c) when describing its intent to
minimize potential harm to lives and the investment at risk. Again,
this is because there is no longer a set requirement related only to
the base floodplain or the 500-year floodplain when there is a critical
action. Instead, FEMA must follow the sequence described in Sec.  9.7
when making the floodplain determination.
    In paragraph 9.11(d), FEMA proposes to revise the text to reflect
that the minimization standards are applicable to all of FEMA's grant
programs. Currently, paragraph 9.11(d) states that the minimization
standards are applicable to only FEMA's implementation of the Disaster
Relief Act of 1974. Some of FEMA's grant programs are authorized under
other legislation.
    In paragraphs 9.11(d)(2) and 9.11(d)(3)(i)-(ii), FEMA proposes to
specifically require elevation of the lowest floor of a building to the
FFRMS floodplain during the construction of new or substantially
improved structures. As described above, FEMA must follow the sequence
described in Sec.  9.7 when making the floodplain determination. FEMA
must determine whether the project meets the new definition of ``FEMA
Federally Funded Project'' in Sec.  9.4. The definition of ``FEMA
Federally Funded Project'' is an action where FEMA funds are used for
new construction, substantial improvement, or to address substantial
damage to a structure or facility. ``Substantial Improvement'' as
defined in Sec.  9.4 includes all actions taken to address substantial
damage to a structure or facility. Because paragraphs 9.11(d)(2) and
9.11(d)(3)(i)-(ii) specifically reference new construction or
substantial improvement, FEMA must establish the floodplain in these
circumstances by using one of the FFRMS approaches (which require the
applicant to consider whether an action is a critical action). FEMA
multi-hazard mitigation guidance can be consulted for technical
information on elevation methods for new construction and the
retrofitting of existing structures with various types of
foundations.\46\ For example, in the case of structures with basements,
the structure may be elevated on solid foundation walls by creating a
new masonry-enclosed area on top of an abandoned and filled-in basement
or elevated on an open foundation by filling in the old basement.\47\
If the structure with a basement is non-residential, the applicant may
elect to dry floodproof the structure rather than elevate. In this
case, basements may be dry floodproofed using the same techniques as
spaces above grade, including the creation of continuous impermeable
walls, creating flood resistance in core interior areas, adding
sealants on openings, installing flood shields for openings in exterior
walls, and installing backflow valves and internal drainage
systems.\48\
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    \46\ A catalogue of FEMA Building Science Branch publications
including descriptions of available publications for natural hazards
can be accessed at http://www.fema.gov/media-library/assets/documents/12909.
    \47\ See FEMA, FEMA P-259 Engineering Principles and Practices
of Retrofitting Floodprone Residential Structures (2012), available
at http://www.fema.gov/media-library/assets/documents/3001, at 5E-8.
    \48\ FEMA, FEMA P-936, Flood Proofing of Non-Residential
Buildings (2013), available at http://www.fema.gov/media-library/assets/documents/34270, at 3-2.
---------------------------------------------------------------------------

    For the same reasons as stated above, in paragraph 9.11(d)(9), FEMA
proposes to remove the reference to the base flood or, in the case of
critical actions, the 500-year flood from paragraph 9.11(d)(9) and
instead reference the floodplain as established in Sec.  9.7(c) when
describing the requirements for the replacement of building contents,
material and equipment.
    FEMA proposes to revise paragraphs 9.11(e)(1) and (e)(2) by adding
``and Mitigation'' to the title of the ``Federal Insurance
Administration'' to reflect the current title of the organization, the
``Federal Insurance and Mitigation Administration.'' FEMA also proposes
to revise paragraphs 9.11(e)(2)(ii), 9.11(e)(3)(i)(E), and
9.11(e)(3)(ii) by replacing ``FIA'' with ``FIMA'' to again reflect the
change in title.
    Finally, FEMA proposes to eliminate paragraph 9.11(e)(4). Paragraph
9.11(e)(4) provides that where the Regional Director has been precluded
from providing assistance for a new or substantially improved structure
in a floodway, FEMA may not provide a new or renewed policy of flood
insurance for that structure. As noted in the regulation, this
provision was temporarily suspended via a November 28, 1980 Federal
Register Notice of intent not to enforce certain regulation concerning
denial of flood insurance

coverage. (45 FR 79069) FEMA ultimately did not implement this
provision and does not intend to do so now; therefore, FEMA is removing
it from the regulation.

L. Section 9.13--Particular Types of Temporary Housing

    FEMA proposes to specifically designate the use of the 1 percent
annual chance (base) floodplain when evaluating whether to take a
temporary housing action. See proposed Sec.  9.13(d)(1). FEMA proposes
to specifically prohibit housing an individual or family in the 1
percent annual chance (base) floodplain, unless the Regional
Administrator has complied with the provisions in proposed Sec.  9.9 to
determine that the site is the only practicable alternative. See
proposed Sec.  9.13(d)(3). 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 homes, which is not practicable; and (3)
it is not always feasible to elevate mobile homes, when they are being
placed as temporary housing.
    FEMA proposes to add the sentence ``actual elevation levels will be
based on manufacturer specifications and applicable Agency guidance''
to reflect the fact that it is not always feasible to elevate mobile
homes. See proposed Sec.  9.13(d)(4)(i). Since mobile homes are often
the last resort for temporary housing and they are being placed
temporarily, it is not always practicable to elevate mobile homes to a
given level. However, the proposed rule would require that such homes
be elevated to the fullest extent practicable.
    In paragraph 9.13(d)(4)(ii), FEMA proposes to substitute ``44 CFR
parts 59-60'' for ``44 CFR part 59 et seq.'' to be clear what specific
sections of the regulations the language references.
    FEMA also proposes to require the elevation of a mobile home to at
least the level of the FFRMS floodplain, if FEMA intends to sell or
otherwise dispose of mobile homes in the FFRMS floodplain. See proposed
Sec.  9.13(e)(2). The reason for this requirement is that any sale or
disposal of a mobile home no longer constitutes temporary housing; FEMA
believes that any unit intended for permanent placement should be
protected to the fullest extent practicable, because the probability
that a flood will occur within the floodplain is greater over the
anticipated lifespan of a permanent structure than a temporary
structure, and so the benefit of hazard mitigation is greater to the
permanent structure than the temporary structure. Further, any sale or
disposal of a mobile home must meet NFIP requirements of residential
structures by elevating the lowest floor. Mobile homes placed in the
floodplain for the purposes of temporary housing must meet the criteria
of the NFIP or any more restrictive standards unless the community has
granted a variance. See proposed Sec.  9.13(d)(4)(ii).
    Additionally, FEMA is proposing to change the paragraph structure
of Sec.  9.13. No substantive changes are intended as a result of this
restructuring.

M. Section 9.17--Instructions to Applicants

    In paragraph 9.17(a), FEMA proposes to add ``as amended'' to
reflect Executive Order 13690's amendment of Executive Order 11988.
    In paragraph 9.17(b), FEMA proposes to update the reference to the
WRC's 1978 Guidelines to the full title for the Revised Guidelines.

N. Section 9.18--Responsibilities

    In paragraph 9.18(b), FEMA proposes to update the references to the
FIA and the title of Associate Administrator.
    In paragraph 9.18(b)(2), FEMA proposes to add ``as amended'' to
reflect Executive Order 13690's amendment of Executive Order 11988.

O. Appendix A to Part 9--Decision-Making Process for E.O. 11988

    FEMA proposes to remove ``Appendix A to Part 9--Decision-Making
Process for E.O. 11988'' in its entirety. The graphic is no longer
accurate. Further, given that Executive Order 13690 deliberately
created a flexible approach to establishing the FFRMS and also requires
update of the FFRMS every 5 years, there is no utility to including the
appendix in regulation. Instead, FEMA would include a revised version
of the appendix to include the new decision-making process and the
definition of the FFRMS floodplain in its policy implementing the
FFRMS.

V. Response to Leadership Intent Comments

    On November 17, 2015, FEMA's Federal Insurance and Mitigation
Administration released for public comment FEMA's Overview of FEMA's
Intent to Implement the FFRMS (Intent). Continuing our commitment to an
open, collaborative, stakeholder-focused process in implementing the
FFRMS, FEMA shared this framework for public comment on FEMA's Web site
through December 17, 2015.
    FEMA received 12 comments in response to the Intent. Of the 12
comments received, 10 comments were supportive, 1 comment was opposed,
and 1 comment was not germane.\49\
---------------------------------------------------------------------------

    \49\ The comments are available in the docket for this
rulemaking.
---------------------------------------------------------------------------

    The 10 comments received in support of the Intent came from a
variety of sources, including local governments, associations,
environmental action organizations, and commenters that chose to reply
in their private capacity. Following is a discussion of the comments
submitted.
    The adverse comment came from a local government official. The
official stated that the CISA would be ``a means to extort money from
citizens based on a junk science forecasts/models of which so called
projections have been outrageously inaccurate.'' The commenter did not
provide any support for the statement. FEMA disagrees with the
commenter's assessment that Climate-Informed Science Approach (CISA) is
based on ``junk science forecasts/models.'' Scientists compare models'
projections of historical climate trends to the historical records
climate variables to measure the confidence of the models' abilities to
accurately predict future climate conditions.\50\ Many peer reviewed
studies of climate models have found in general that climate model
simulations of historical global temperature and other climactic
variables are comparable to the historical recorded observations of
those variables.\51\ These studies provide confidence in accuracy of
climate models' projections of future climate conditions.
---------------------------------------------------------------------------

    \50\ Risbey et al. 2014. Well-estimated global surface warming
in climate projections selected for ENSO phase. ``Nature Climate
Change'', 4, 835-840.
    \51\ See Covey et al. 2003. An overview of results from the
coupled model intercomparison project (CIMP). ``Global and Planetary
Change'', 37, 103-133; and Cubasch et al. 2013. Introduction. In:
``Climate Change 2013: The Physical Science Basis. Contribution of
Working Group I to the Fifth Assessment Report of the
Intergovernmental Panel on Climate Change'' [Stocker et al. (eds)].
Cambridge University Press, Cambridge at 131.
---------------------------------------------------------------------------

    The 2014 United States National Climate Assessment (Assessment)
concluded that ``[g]lobal trends in temperature and many other climate
variables provide consistent evidence of

a warming planet.'' \52\ These trends ``are based on a wide range of
observations, analyzed by many independent research groups around the
world.'' \53\ The Assessment reported that confidence is very high \54\
that global sea level has risen during the past century and that it
will continue to rise, and there is medium confidence that global sea
level rise will be in the range of 1-4 feet by 2100.\55\ The Assessment
further reports that although changes in overall precipitation are
uncertain in many U.S. areas, there is high degree of certainty that
the heaviest precipitation events will increase everywhere, and by
large amounts.\56\ The approaches to establish a higher vertical
elevation and corresponding floodplain provided in the FFRMS are
intended to address these future flood risks.
---------------------------------------------------------------------------

    \52\ Walsh et al. 2014: Ch. 2: Our Changing Climate. ``Climate
Change Impacts in the United States: The Third National Climate
Assessment,'' J. M. Melillo, Terese (T.C.) Richmond, and G. W. Yohe,
Eds., U.S. Global Change Research Program, 19-67.
    \53\ Id.
    \54\ ``Very high'' is the highest confidence level used in the
Assessment. See id. at 61.
    \55\ Id. at 66.
    \56\ Id. at 33.
---------------------------------------------------------------------------

    Within the 10 supportive comments, the commenters provided
suggestions and asked questions concerning FEMA's proposed framework.
One local government agreed that the CISA should be used in
``calculating the [FFRMS] flood level and floodplain,'' but stated
that:

    [Allowing a different set of standards for FFRMS and NFIP not
only allows for non-compliance with the NFIP i[t] encourages it. How
will FEMA discipline a community for not complying with the NFIP
when they provided the funding for the project under FFRMS. This is
a double standard and will create legal issues if not revised.

    FEMA disagrees that implementing the FFRMS encourages noncompliance
with NFIP standards. FEMA acknowledges that it is proposing to provide
an option to use the CISA for critical facilities, but notes that under
this proposal, the CISA would only be allowed if the elevation is
higher than the elevation established using the FVA. This precaution
would eliminate the possibility that the CISA elevation used for a FEMA
Federally Funded Project would be less than the base flood elevation
required as the minimum standard of the NFIP. Additionally, FEMA has
complied and will continue to comply with local floodplain management
standards that are more restrictive. FEMA is not proposing to amend
Sec.  9.11(d)(6), which prohibits FEMA from taking any action that is
inconsistent with the NFIP standards or any more restrictive Federal,
State, or local floodplain management standards.
    One commenter was concerned with the issue of coordination between
Federal agencies, stating: