67870 Federal Register / Vol. 88, No. 189 / Monday, October 2, 2023 / Proposed Rules 

DEPARTMENT OF HOMELAND 

SECURITY 

Federal Emergency Management 

Agency 

44 CFR Part 9 

[Docket ID: FEMA–2023–0026] 

RIN 1660–AB12 

Updates to Floodplain Management 

and Protection of Wetlands 

Regulations To Implement the Federal 

Flood Risk Management Standard 

AGENCY: Federal Emergency 

Management Agency, DHS. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The Federal Emergency 

Management Agency (FEMA) proposes 

to amend its regulations to implement 

the Federal Flood Risk Management 

Standard (FFRMS) and update the 

agency’s 8-step decision-making process 

floodplain reviews. FEMA also proposes 

a supplementary policy that would 

further clarify how FEMA would apply 

the FFRMS. The proposed rule would 

change how FEMA defines a floodplain 

with respect to certain actions, and 

FEMA would use natural systems, 

ecosystem process, and nature-based 

approaches, where possible, when 

developing alternatives to locating the 

proposed action in the floodplain. 

DATES: Comments must be received no 

later than December 1, 2023. 

ADDRESSES: You may submit comments, 

identified by Docket ID: FEMA–2023– 

0026, via the Federal eRulemaking 

Portal: http://www.regulations.gov. 

Follow the instructions for submitting 

comments. 

FOR FURTHER INFORMATION CONTACT: 

Portia Ross, Policy and Integration 

Division Director, Office of 

Environmental Planning and Historic 

Preservation, Resilience, DHS/FEMA, 

400 C Street SW, Suite 313, Washington, 

DC 20472–3020. Phone: (202) 709–0677; 

Email: fema-regulations@fema.dhs.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Public Participation 

II. Executive Summary 

III. Factual and Legal Background 

A. Executive Order 11988, ‘‘Floodplain 

Management’’ 

B. Statutory Authority To Require the 

FFRMS Under FEMA Grant Programs 

C. 44 CFR Part 9, ‘‘Floodplain Management 

and Protection of Wetlands’’ 

D. Reevaluation of the 1 Percent Chance or 

100-Year Flood Standard 

E. Executive Order 13690, the Federal 

Flood Risk Management Standard 

(FFRMS) and Subsequent Amendments 

to Executive Order 11988, and Revisions 

to the 1978 Guidelines 

F. Substantive Components of the FFRMS 

G. FEMA’s Implementation of the FFRMS 

and the Revised Guidelines 

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—Severability 

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 9.10—Identify Impacts of 

Proposed Actions 

L. Section 9.11—Mitigation 

M. Section 9.12—Final Public Notice 

N. Section 9.13—Particular Types of 

Temporary Housing 

O. Section 9.14—Disposal of Agency 

Property 

P. Section 9.16—Guidance for Applicants 

Q. Section 9.17—Instructions to Applicants 

R. Section 9.18—Responsibilities 

V. Comments Received Associated With Part 

9 Revisions 

VI. 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 

E.O.—Executive Order 

FBFM—Flood Boundary Floodway Map 

FEMA—Federal Emergency Management 

Agency 

FFRMS—Federal Flood Risk Management 

Standard 

FHBM—Flood Hazard Boundary Map 

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 

IRFA—Initial Regulatory Flexibility Analysis 

NEPA—National Environmental Policy Act 

of 1969 

NFIA—National Flood Insurance Act, as 

amended 

NFIP—National Flood Insurance Program 

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 

RCP––Representative Concentration Pathway 

RFA—Regulatory Flexibility Act 

RIA—Regulatory Impact Analysis 

SBREFA—Small Business Regulatory 

Enforcement Fairness Act of 1996 

SFHA––Special Flood Hazard Area 

SLR––Sea Level Rise 

SORN—System of Records Notice 

Stafford Act—Robert T. Stafford Disaster 

Relief and Emergency Assistance Act, as 

amended 

THU—Temporary Housing Unit 

USGS—United States Geological Survey 

WRC—Water Resources Council 

I. Public Participation 

Interested persons are invited to 

participate in this rulemaking by 

submitting comments and related 

materials. We will consider all 

comments and material received during 

the comment period. 

If you submit a comment, include the 

Docket ID FEMA–2023–0026, indicate 

the specific section of this document to 

which each comment applies, and give 

the reason for each comment. All 

submissions may be posted, without 

change, to the Federal e-Rulemaking 

Portal at http://www.regulations.gov, 

and will include any personal 

information you provide. Therefore, 

submitting this information makes it 

public. For more about privacy and the 

docket, visit https://

www.regulations.gov/

document?D=DHS-2018-0029-0001. 

Viewing comments and documents: 

For access to the docket to read 

background documents or comments 

received, go to the Federal eRulemaking Portal at http://

www.regulations.gov. 


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1 80 FR 6425, Feb. 4, 2015. 

2 86 FR 27967 (May 25, 2021). 

3Executive Order 13690 amended Executive 

Order 11988 in 2015 and was revoked in 2017 by 

Executive Order 13807. Executive Order 13690 was 

reinstated in 2021 by Executive Order 14030. See 

80 FR 64008 (Oct. 22, 2015), 82 FR 40463 (Aug. 24, 

2017), and 86 FR 27967 (May 25, 2021). 

4 80 FR 64008 (Oct. 22, 2015); https://

www.regulations.gov/document/FEMA-2015-0006- 

0358. (Last accessed July 12, 2023). 

5 Id. 

6As a result of climate change, flood events are 

on the rise. Climate change is increasing flood risk 

through (1) more ‘‘extreme’’ rainfall events,’’ caused 

by a warmer atmosphere holding more water vapor 

and changes in regional precipitation patterns; and 

(2) sea-level rise. See Rob Bailey, Claudio Saffioti, 

and Sumer Drall, Sunk Costs: The Socioeconomic 

Impacts of Flooding 3 and 8, Marsh McLennan 

(2021). 

7Federal Budget Exposure to Climate Risk. OMB 

Assessment found https://www.whitehouse.gov/wpcontent/uploads/2022/04/ap_21_climate_risk_

fy2023.pdf (last accessed July 12, 2023). 

8 Id. 

II. Executive Summary 

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.’’ 1

Executive Order 13690 amended 

Executive Order 11988 and established 

the FFRMS. The FFRMS is a flood 

resilience standard that is required for 

‘‘Federally funded projects’’ and 

provides a flexible framework to 

increase resilience against flooding and 

help preserve the natural values of 

floodplains and wetlands. 

On August 22, 2016, FEMA published 

a Notice of Proposed Rulemaking 

(NPRM) entitled ‘‘Updates to Floodplain 

Management and Protection of Wetlands 

Regulations to Implement Executive 

Order 13690 and the Federal Flood Risk 

Management Standard’’ in the Federal 

Register (81 FR 57402). This NPRM 

would have revised FEMA’s regulations 

on ‘‘Floodplain Management and 

Protection of Wetlands’’ to implement 

Executive Order 13690. FEMA also 

proposed a supplementary policy 

entitled ‘‘FEMA Policy: Guidance for 

Implementing the Federal Flood Risk 

Management Standard (FFRMS)’’ 

(FEMA Policy 078–3), which would 

have further clarified how FEMA would 

apply the FFRMS. The notice of 

availability and request for comments 

for the supplementary policy also 

published in the August 22, 2016 

Federal Register at 81 FR 56558. On 

September 20, 2016, FEMA published a 

notice of data availability regarding a 

draft report, the 2016 Evaluation of the 

Benefits of Freeboard for Public and 

Nonresidential Buildings in Coastal 

Areas, which had been added to the 

docket for the proposed rule (81 FR 

64403). 

On August 15, 2017, the President 

issued Executive Order 13807 

(‘‘Establishing Discipline and 

Accountability in the Environmental 

Review and Permitting Process for 

Infrastructure Projects’’) which revoked 

Executive Order 13690. See 82 FR 

40463, Aug. 24, 2017. Accordingly, in 

light of the revocation of Executive 

Order 13690, FEMA withdrew the 

August 22, 2016 NPRM and 

supplementary policy (83 FR 9473). On 

May 20, 2021, the President issued 

Executive Order 14030 (‘‘ClimateRelated Financial Risk’’) 2 reinstating 

Executive Order 13690, thereby 

reestablishing the FFRMS. Accordingly, 

FEMA is proposing an updated revision 

to its regulations and an updated 

supplementary policy to implement the 

FFRMS. 

FEMA is proposing to amend 44 CFR 

part 9, ‘‘Floodplain Management and 

Protection of Wetlands,’’ and issue a 

supplementary policy to implement the 

FFRMS and update the agency’s 8-step 

process. As mentioned above, the 

FFRMS is a flood resilience standard 

that is required for ‘‘Federally funded 

projects’’ and provides a flexible 

framework to increase resilience against 

flooding and help preserve the natural 

values of floodplains and wetlands. A 

floodplain is any land area that is 

subject to flooding and refers to 

geographic features with undefined 

boundaries. 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 11988, as amended,3

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). The revised 

definitions allow for consideration of 

both current and future flood risks in 

defining the floodplain to minimize the 

impact of floods on human health, 

safety, and welfare and reduce the risk 

of flood loss. For actions subject to the 

FFRMS, FEMA proposes to use the 

updated definition of ‘‘floodplain’’ 

contained in the Guidelines for 

Implementing Executive Order 11988, 

Floodplain Management, and Executive 

Order 13690, Establishing a Federal 

Flood Risk Management Standard and a 

Process for Further Soliciting and 

Considering Stakeholder Input (Revised 

Guidelines).4 As discussed further 

below, the FFRMS allows the agency to 

define ‘‘floodplain’’ using any of three 

approaches or a fourth approach 

resulting from any other method in an 

update to the FFRMS. 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 an action subject to the 

FFRMS, FEMA would continue to use 

the historical definition of floodplain 

with minor clarifying revisions to help 

stakeholders better understand the 

terminology. Regardless of whether the 

action is subject to FFRMS, FEMA will 

follow the Revised Guidelines 5 to 

determine whether an action is in the 

floodplain. 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 believes that this rule is an 

important step toward mitigating future 

flood risk, and that such mitigation will 

ultimately benefit communities by 

allowing them to recover from future 

disasters more efficiently and 

effectively. The United States is 

experiencing increased flooding and 

flood risk from climate change.6 The full 

extent of future changes in flood risk 

has not yet been estimated across the 

full inventory of Federal, State, local, 

Tribal, and territorial properties. 

However, in a survey of Federal 

properties alone, those assessments that 

have been completed identified over 

40,000 individual Federal buildings and 

structures with a combined replacement 

cost of $81 billion located in the current 

100-year floodplain and approximately 

160,000 structures with a total 

replacement cost of $493 billion located 

in the current 500 year floodplain.7

Approximately 10,250 individual 

Federal buildings and structures were 

identified in coastal areas with a 

combined replacement cost of $32.3 

billion that would be severely impacted 

by an eight-feet sea-level rise scenario 

and over 12,195 individual Federal 

buildings and structures with a 

combined replacement cost of over 

$43.7 billion under a ten-foot ‘‘worst 

case’’ sea level rise scenario.8 This 

proposed rule would ensure that actions 

subject to the FFRMS are designed to be 

resilient to both current and future flood 

risks to minimize the impact of floods 

on human health, safety, and welfare 


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67872 Federal Register / Vol. 88, No. 189 / Monday, October 2, 2023 / Proposed Rules 

9FEMA used an average of the number of affected 

projects during the prior 10-year period to estimate 

the average annual impacts of the future 10-year 

period. 

and to protect Federal investments by 

reducing the risk of flood loss. 

FEMA estimated the total impacts of 

the proposed rule by analyzing the 

impact of the FVA, 0.2PFA and CISA for 

FEMA’s Public Assistance (PA), 

Individual Assistance (IA), and Hazard 

Mitigation Assistance (HMA) grant 

programs by examining the number of 

projects that would be subject to the 

proposed requirements in the first 10 

years after the rule’s publication.9

FEMA’s analysis focused on the costs, 

benefits, and transfer payments (i.e., 

impacts on FEMA grants), that would 

result over a 50-year period from 

applying the requirements of the 

proposed rule to those projects, for a 

total period of analysis spanning 60 

years. Tables 1 and 2 show the total 

impacts of this proposed rule under the 

three approaches for each of the affected 

programs. 

TABLE 1—SUMMARY OF COSTS, TRANSFERS AND BENEFITS BY APPROACH AND PROGRAM FOR AFFECTED PROJECTS IN

YEARS 1–10 

[Low estimate, 2021$] 

Costs * Undiscounted 

3% Discount rate 7% Discount rate 

Present value Annualized Present value Annualized 

CISA Total (primary) (+5-ft) ............................................. $138,393,786 $118,052,707 $4,265,594 $97,202,003 $6,923,623 

PA ............................................................................. 102,794,460 87,685,759 3,168,346 72,198,527 5,142,645 

IA ............................................................................... 1,421,690 1,212,730 43,820 998,537 71,125 

HMA .......................................................................... 48,908,310 41,719,781 1,507,459 34,351,150 2,446,806 

FVA Total ......................................................................... 61,994,588 52,882,642 1,910,806 43,542,402 3,101,492 

0.2PFA Total .................................................................... 53,397,625 45,549,257 1,645,829 37,504,256 2,671,399 

FEMA Admin .................................................................... 3,741,680 3,267,150 118,052 2,776,613 197,776 

Not Quantified .................................................................. Not Estimated: Increased resiliency standard for approximately 20,961 facility projects 

over 10 years, Additional costs for Adding Requirements to Buildings with Basements, 

Diversion of Projects Out of the Floodplain, Lifecycle maintenance costs for 

floodproofing, and Project Delays and Forgone Projects. 

Transfer Payments from FEMA to Grant Recipients * 

CISA Total (primary) (+5-ft) ............................................. 109,216,359 93,163,768 3,366,283 76,709,000 5,463,923 

PA ............................................................................. 82,955,130 70,762,410 2,556,855 58,264,212 4,150,115 

IA ............................................................................... 1,421,690 1,212,730 43,820 998,537 71,125 

HMA .......................................................................... 36,681,233 31,289,834 1,130,594 25,763,363 1,835,104 

FVA Total ......................................................................... 48,898,424 41,711,348 1,507,154 34,344,206 2,446,311 

0.2PFA Total .................................................................... 41,973,888 35,804,576 1,293,725 29,480,702 2,099,888 

Benefits * 

PA (CISA, primary) (+1-ft) ............................................... 55,180,000 47,069,660 1,700,766 38,756,122 2,760,569 

Not Quantified .................................................................. Not Estimated: Damage Avoidance for approximately 13,254 IA and HMA structure 

projects and 20,961 PA and HMA facility projects over 10 years, Potential Lives 

Saved, Increased Public Health and Safety, Decreased Cleanup Time, Protection of 

Critical Facilities, Reduction of Personal and Community Impacts. 

* FEMA focused its analysis on the projects impacted in the first 10 years after the rule’s publication. FEMA considered the resulting costs, 

benefits, and transfer payments of the proposed rule on those projects over a 50-year period, for a total of 60 years. The costs and transfers 

occur in the first 10 years of the 60-year period because that is when the initial investment to elevate or floodproof them to meet the proposed 

requirements takes place. This is an upfront cost that occurs when the project is constructed. However, the benefits of the proposed rule are realized over the 50-year useful life of the affected structures. 

TABLE 2—SUMMARY OF 60-YEAR COSTS, TRANSFERS AND BENEFITS BY APPROACH AND PROGRAM FOR AFFECTED

PROJECTS IN YEARS 1–10 

[High estimate, 2021$] 

Costs * Undiscounted 

3% Discount rate 7% Discount rate 

Present value Annualized Present value Annualized 

CISA Total (primary) (+5-ft) ............................................. $151,319,537 $129,078,635 $4,663,993 $106,280,511 $7,570,278 

PA ............................................................................. 120,722,020 102,978,331 3,720,912 84,790,095 6,039,533 

IA ............................................................................... 1,421,690 1,212,730 43,820 998,537 71,125 

HMA .......................................................................... 48,908,310 41,719,781 1,507,459 34,351,150 2,446,806 

FVA Total ......................................................................... 68,035,769 58,035,891 2,097,008 47,785,478 3,403,723 

0.2PFA Total .................................................................... 57,766,400 49,275,911 1,780,484 40,572,701 2,889,962 

FEMA Admin .................................................................... 4,942,430 4,291,414 155,061 3,619,968 257,848 


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10Category E projects are public buildings and 

contents. See Public Assistance Fact Sheet at 

https://www.fema.gov/sites/default/files/2020-07/ 

fema_public-assistance-fact-sheet_10-2019.pdf. 

11FEMA used one foot for benefits as the 2022 

report only specifies monetary benefits for an 

additional one foot over current requirements. 

FEMA included this number in the quantified 

benefits because it is the only monetary benefit 

available for any freeboard level. 

12Costs for the FVA may be a better comparison 

because they represent 2 or 3 feet of freeboard, 

depending on criticality. However, the number of 

projects using FVA and CISA differ, making such 

a comparison difficult. 

TABLE 2—SUMMARY OF 60-YEAR COSTS, TRANSFERS AND BENEFITS BY APPROACH AND PROGRAM FOR AFFECTED

PROJECTS IN YEARS 1–10—Continued 

[High estimate, 2021$] 

Costs * Undiscounted 

3% Discount rate 7% Discount rate 

Present value Annualized Present value Annualized 

Not Quantified .................................................................. Not Estimated: Increased resiliency standard for approximately 20,961 facility projects 

over 10 years, Additional costs for Adding Requirements to Buildings with Basements, 

Diversion of Projects Out of the Floodplain, Lifecycle maintenance costs for 

floodproofing, and Project Delays and Forgone Projects. 

Transfer Payments from FEMA to Grant Recipients * 

CISA Total (primary) (+5-ft) ............................................. 119,647,439 102,061,693 3,687,791 84,035,355 5,985,773

PA ............................................................................. 97,422,670 83,103,514 3,002,776 68,425,607 4,873,903 

IA ............................................................................... 1,421,690 1,212,730 43,820 998,537 71,125 

HMA .......................................................................... 36,681,233 31,289,834 1,130,594 25,763,363 1,835,104 

FVA Total ......................................................................... 53,773,657 45,870,019 1,657,420 37,768,366 1,657,420 

0.2PFA Total .................................................................... 45,499,493 38,811,991 1,402,392 31,956,941 2,276,268 

Benefits * 

PA (CISA, primary) (+1-ft) ............................................... 61,985,720 52,875,076 1,910,533 43,536,175 3,101,048 

Not Quantified .................................................................. Not Estimated: Damage Avoidance for approximately 13,254 IA and HMA structure 

projects and 20,961 PA and HMA facility projects over 10 years, Potential Lives 

Saved, Increased Public Health and Safety, Decreased Cleanup Time, Protection of 

Critical Facilities, Reduction of Personal and Community Impacts. 

* FEMA focused its analysis on the projects impacted in the first 10 years after the rule’s publication. FEMA considered the resulting costs, 

benefits, and transfer payments of the proposed rule on those projects over a 50-year period, for a total of 60 years. The costs and transfers 

occur in the first 10 years of the 60-year period because that is when the initial investment to elevate or floodproof them to meet the proposed 

requirements takes place. This is an upfront cost that occurs when the project is constructed. However, the benefits of the proposed rule are realized over the 50-year useful life of the affected structures. 

Table 3 provides the estimated 

number of structures and facilities 

affected by the proposed rule over the 

first 10 years, assuming that each 

approach is the only expansion option. 

Structures, which are walled and roofed 

buildings, would comply with the 

proposed FFRMS through elevating or 

floodproofing to the required height. 

Facilities, which are any human-made 

or human-placed items other than a 

structure such as roads and bridges, 

would require different mitigation 

measures in order to comply with the 

increased resiliency standard of the 

proposed rule. The monetized impacts 

of this rule are representative of the 

floodproofing and elevation mitigation 

measures that would be required of 

structures. However, for reasons 

explained in more detail later, FEMA 

was unable to monetize the impacts of 

the rule for facilities. 

TABLE 3—ESTIMATED NUMBER OF STRUCTURES AND FACILITIES AFFECTED BY THE PROPOSED RULE IN YEARS 1–10 

FFRMS approach 

Structures Total 

structures 

Facilities Total 

facilities 

Total 

projects PA IA HMA PA HMA 

FVA ................................................ 1,090 2,650 9,492 13,232 20,120 841 20,961 34,193 

0.2PFA ........................................... 840 2,650 9,447 12,937 20,120 841 20,961 33,898 

CISA ............................................... 1,173 2,903 10,351 14,427 20,120 841 20,961 35,388 

Quantified estimates of the benefits of 

this rule are available for only nonresidential PA Category E projects, 

which are for structures. Due to the 

highly project-specific nature of 

facilities projects and numerous options 

for making them resilient, FEMA could 

not estimate the costs of improving 

flood resiliency of facilities.10 Tables 1 

and 2 show that the total 60-year 

benefits for non-residential PA Category 

E projects in the first 10 years is $43.5 

million (7 percent, high). This benefit is 

for adding one foot of freeboard, 

assuming a 59-inch sea level rise 

(SLR).11 Although the cost for PA 

Category E projects is $84.8 million (7 

percent, high), this cost represents 5 feet 

of freeboard (FEMA’s assumption for 

CISA).12 FEMA does not have data to 

quantify the benefits of additional 

freeboard and thus the quantified 

benefits represent only a portion of the 

increased risk reduction that would be 

achieved through this rule. Ensuring 

projects are built to the height necessary 

to avoid additional loss scenarios would 

provide additional unquantified benefits 

of avoided damages to the structure, 


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I I 
67874 Federal Register / Vol. 88, No. 189 / Monday, October 2, 2023 / Proposed Rules 

13See 42 U.S.C. 4001 and 4102. 

14See 42 U.S.C. 4332(2)(C). 

15See 42 U.S.C. 4331(b)(3). 

16Any action FEMA takes in a floodplain, 

including its provision of grants for disaster 

assistance, 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. 

17This is also referred to as the ‘‘100-year 

floodplain’’ or the ‘‘base floodplain.’’ 

18The 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. 

19 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/ 

decreased cleanup time and disruption 

to the community, and increased public 

health and safety. Moreover, FEMA’s 

use of CISA as its preferred approach 

would use the best available and 

actionable scientific data to tailor future 

flooding risk to each project ensuring 

that projects are built only to the height 

necessary and thus maximizing net 

benefits. Accordingly, FEMA believes 

the benefits of the rule—quantified and 

unquantified—would justify its costs. 

III. Legal and Factual Background 

Below, FEMA describes in more 

specific detail the basis for this 

proposed rule. Section III.A describes 

Executive Order 11988, the Water 

Resources Council’s 1978 ‘‘Floodplain 

Management Guidelines’’ (1978 

Guidelines), and the statutory authority 

underlying the Executive Order. 

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’s statutory authority to 

require its grant recipients to carry out 

repairs or construction in accordance 

with specific standards. Section III.C 

describes FEMA’s implementing 

regulations at 44 CFR part 9, which 

closely follow the model decisionmaking process under Executive Order 

11988. Section III.D 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.E describes the development 

of Executive Order 13690, the Federal 

Flood Risk Management Standard, and 

additional guidance in the Revised 

Guidelines issued in 2015 as well as 

subsequent amendments to Executive 

Order 11988. Section III.F describes the 

substantive components of the Federal 

Flood Risk Management Standard and 

Section III.G 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.). 

The National Flood Insurance Act, as 

amended by the Flood Disaster 

Protection Act establishes a multipurpose program to provide flood 

insurance, minimize exposure of 

property to flood losses, minimize the 

damage caused by flood losses, and 

guide the development of proposed 

construction, where practicable, away 

from floodplains.13 The National Flood 

Insurance Act and the Flood Disaster 

Protection Act highlight coordination of 

flood insurance with land management 

programs in flood-prone areas. NEPA 

requires Federal agencies to analyze the 

environmental impacts of proposed 

actions and evaluate alternatives to 

those actions, which includes the 

evaluation of the impacts of proposed 

actions in the floodplains.14 NEPA 

mandates that agencies ‘‘attain the 

widest range of beneficial uses of the 

environment without degradation, risk 

to health or safety, or other undesirable 

and unintended consequences.’’ 15 In 

furtherance of and consistent with this 

statutory foundation, Executive Order 

11988 requires Federal agencies to 

avoid, to the extent possible, the longand short-term adverse impacts 

associated with the occupancy and 

modification of floodplains, where there 

is a practicable alternative. The 

Executive Order 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. 

To meet these requirements, each 

agency, before taking an action, must 

determine whether the proposed action 

will occur in a floodplain.16 Section 

(6)(c) of Executive Order 11988 defines 

the word ‘‘floodplain’’ to mean ‘‘the 

lowland and relatively flat areas 

adjoining inland and coastal waters 

including floodprone areas of offshore 

islands, including at a minimum, the 

area subject to a one percent or greater 

chance of flooding in any given year.’’ 17

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 

explaining 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),18

FEMA, and the Council on 

Environmental Quality (CEQ). As noted, 

the WRC issued ‘‘Floodplain 

Management Guidelines’’ (1978 

Guidelines), the authoritative 

interpretation of Executive Order 

11988.19 The 1978 Guidelines provided 


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huddoc?id=DOC_14216.pdf (last accessed July 12, 

2023). 20See 42 U.S.C. 5165a(a)(1) 21See 42 U.S.C. 5165a(a)(2) 22See 42 U.S.C. 4104c and 4102. 23FEMA 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. 

24 44 CFR 9.4 defines the actions subject to the 

requirements, which include federal lands and 

facilities, providing federal funds for construction 

and improvements, and conducting activities or 

programs that affect land use. 

25A 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). 

26For 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 44 CFR 9.5(f). 

27The 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 

(1986) (last accessed July 12, 2023). 

28FEMA also utilizes best available information 

in making floodplain determinations, which may 

include preliminary FIRMs or Advisory Base Flood 

Elevations (ABFEs). See FEMA Policy: Guidance on 

the Use of Available Flood Hazard Information (last 

accessed July 12, 2023). 29FEMA estimates that only approximately 20 

percent of mapped flood zones have detailed 

floodplain boundaries of the 0.2 percent annual 

chance floodplain. 30The 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. 

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. 

B. Statutory Authority To Require 

FFRMS Under FEMA Grant Programs 

FEMA’s grant programs that fund new 

construction, substantial improvement, 

or repairs to address substantial damage 

are authorized under the Robert T. 

Stafford Disaster Relief and Emergency 

Assistance Act, as amended (42 U.S.C. 

5121 et seq.) and the National Flood 

Insurance Act of 1968, as amended (42 

U.S.C. 4001 et seq.). FEMA generally 

has authority under these discretionary 

grant programs to set eligibility criteria. 

Further, section 323 of the Stafford Act 

authorizes FEMA to require, as a 

condition of grant funding for all 

Stafford Act programs, that the repair or 

construction of private and public 

facilities be completed in accordance 

with ‘‘applicable standards of safety, 

decency, and sanitation in conformity 

with applicable codes, specifications 

and standards.’’ 20 Section 323 also 

grants FEMA discretion to require any 

other safe land use and construction 

practices it deems appropriate after 

adequate consultation with appropriate 

State and local government officials.21

Section 404 of the National Flood 

Insurance Act grants FEMA the 

authority to provide flood mitigation 

grant funding and requires the activities 

funded to be consistent with floodplain 

management criteria developed by the 

Administrator.22

C. 44 CFR Part 9, ‘‘Floodplain 

Management and Protection of 

Wetlands’’ 

Consistent with the National Flood 

Insurance Act, the Flood Disaster 

Protection Act, and NEPA, FEMA 

promulgated regulations implementing 

Executive Order 11988 at 44 CFR part 9, 

‘‘Floodplain Management and 

Protection of Wetlands.’’ 23 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 generally applies to FEMA 

actions, including FEMA direct actions 

and FEMA’s disaster and non-disaster 

assistance programs.24

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 applies part 9 

programmatically to the National Flood 

Insurance Program (NFIP) 25. 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.26

Below FEMA outlines the existing 8- 

step decision-making process that the 

agency currently follows in applying 

Executive Order 11988 to its actions: 

Step (1) Floodplain and wetland 

determination (44 CFR 9.7). Under Step 

1, FEMA must determine if a proposed 

agency action is located in or affects the 

1 percent annual chance floodplain (or, 

for critical actions, the 0.2 percent 

annual chance floodplain) or wetland. 

The 1 percent annual chance (or base or 

100-year) floodplain is the area subject 

to inundation by the 1 percent annual 

chance flood, which is that flood which 

has a 1 percent chance of occurrence in 

any given year (also known as the base 

or 100-year flood). A ‘‘critical action’’ is 

any activity for which even a slight 

chance of flooding would be too great.27

The minimum floodplain of concern for 

critical actions is the 0.2 percent annual 

chance (or 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 0.2 

percent annual chance floodplain 

generally covers a larger area than the 1 

percent annual chance floodplain. 

FEMA’s regulations state that in each 

instance where the 8-step process refers 

to the 1 percent annual chance 

floodplain, an agency should substitute 

the 0.2 percent annual chance 

floodplain for the 1 percent annual 

chance floodplain if the proposed action 

is a critical action. Absent a finding to 

the contrary, FEMA currently assumes a 

proposed action involving a facility or 

structure that has been flooded is in the 

floodplain. 

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.28 A FIRM is an 

official, detailed map issued by the 

NFIP, generally showing elevations and 

boundaries of the 1 percent annual 

chance floodplain and the 0.2 percent 

annual chance floodplain.29 The FBFM 

is a version of a flood map that shows 

only the floodway 30 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 1 

percent annual chance 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 the proposed site is in the 1 

percent annual chance 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 


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31This step is required for any action that is 

within or affects a floodplain or wetland unless 

exempted or subject to the abbreviated processes 

outlined in 44 CFR 9.5. 

32A functionally dependent use means a use 

which cannot perform its intended purpose unless 

it is located or carried out in close proximity to 

water. See 44 CFR 9.4. 

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. If 

the proposed action is outside the 

floodplain or wetland and has no 

identifiable impacts or support, the 

action can be implemented (Step 8). 

Step (2) Early public review (44 CFR 

9.8). FEMA must make public its intent 

to locate a proposed action in the 

floodplain or a wetland.31 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 

or wetlands. 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 or a wetland, FEMA will 

identify and evaluate practicable 

alternatives to carrying out a proposed 

action in floodplains or wetlands, 

including the following: alternative sites 

outside the floodplain or wetland; 

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 or wetland; and ‘‘no action.’’ 

The floodplain or wetland 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 or wetland if a 

practicable alternative exists outside the 

floodplain or wetland. For critical 

actions, FEMA will not locate the 

proposed action in the 0.2 percent 

annual chance floodplain if a 

practicable alternative exists outside the 

0.2 percent annual chance 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 wetland. 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 or wetlands and the 

potential direct and indirect support of 

floodplain or wetland development that 

could result from the proposed action. 

Step (5) Minimize impacts (44 CFR 

9.11). If the proposed action has 

identifiable impacts in the floodplain or 

wetland or directly or indirectly 

supports development in the floodplain 

or wetland, FEMA must minimize these 

effects and restore and preserve the 

natural and beneficial values served by 

floodplains and wetlands. 44 CFR 

9.11(b) states generally that FEMA will 

design or modify its actions 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 1 percent 

annual chance flood, or, in the case of 

critical actions, from the 0.2 percent 

annual chance 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 32 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 1 percent annual chance flood 

level (the 0.2 percent annual chance 

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 

1 percent annual chance 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 0.2 percent annual chance flood. 

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 or wetland and of what 

measures are necessary to comply with 

the requirement to minimize harm to 

and within the floodplains and 

wetlands, FEMA will determine 

whether: the action is still practicable at 

a floodplain or wetland site in light of 

the exposure to flood risk and the 

ensuing disruption of natural values, the 

floodplain or wetland site is the only 

practicable alternative, the scope of the 

action can be limited to increase the 

practicability of previously rejected 

non-floodplain or non-wetland sites and 

alternative actions, and minimization of 

harm to or within the floodplain or 

wetland can be achieved using all 

practicable means. Pursuant to 44 CFR 

9.9(e)(2), FEMA will take no action in a 

floodplain or wetland unless the 

importance of the floodplain or wetland 

site clearly outweighs the requirement 

of Executive Order 11988 to avoid direct 

or indirect support of floodplain or 

wetland development; reduce the risk of 

flood loss; minimize the impact of 

floods on human safety, health, and 

welfare; and restore and preserve 

floodplain and wetland 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 or wetland, 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 


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33 77 FR 74341 (Dec. 14, 2012). 

34This 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 https:// 

www.fema.gov/glossary/freeboard (last accessed 

July 12, 2023). 

35HUD release entitled, ‘‘Federal Government 

Sets Uniform Flood Risk Reduction Standard for 

Sandy Rebuilding Projects,’’ April 4, 2013. 

36Executive Office of the President, The 

President’s Climate Action Plan (2013), available at 

https://www.whitehouse.gov/sites/default/files/ 

image/president27sclimateactionplan.pdf. (last 

accessed July 12, 2023). 

37See id at 15. 

38President’s State, Local, and Tribal Leaders 

Task Force on Climate Preparedness and Resilience, 

Recommendations to the President, (2014), 

available at https://obamawhitehouse.archives.gov/ 

sites/default/files/docs/task_force_report_0.pdf at 7 

(last accessed July 12, 2023). 

39 80 FR 6425, Feb. 4, 2015. 

40 80 FR 6530, Feb. 5, 2015. 

41FEMA 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). 

42 80 FR 64008 (Oct. 22, 2015); https://

www.regulations.gov/document/FEMA-2015-0006- 

0358 (last accessed July 12, 2023). 

this determination, identification of the 

responsible official, and a map of the 

relevant area. FEMA may implement the 

proposed action after it allows a 

reasonable period for public response. 

Step (8) Implementation (Multiple 

sections of 44 CFR and applicable 

program guidance). 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. 

D. Reevaluation of the 1 Percent Annual 

Chance Flood Standard 

In the aftermath of Hurricane Sandy, 

the President issued Executive Order 

13632,33 which created the Federal 

Interagency Hurricane Sandy 

Rebuilding Task Force (Sandy Task 

Force). 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 34 the best available and most 

recent 1 percent annual chance flood 

elevation and applied that standard to 

all Federal disaster recovery 

investments in Sandy-affected 

communities.35 The Sandy Task Force 

called for all major rebuilding projects 

in Sandy-affected communities using 

Federal funding to be elevated or 

otherwise flood-proofed according to 

this new flood risk reduction standard. 

In June 2013, the President issued a 

Climate Action Plan 36 that directed 

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 ‘‘federallyfunded . . . projects’’ to ensure that 

‘‘projects funded with taxpayer dollars 

last as long as intended.’’ 37 After a yearlong 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. The 

Climate Task Force recommended that, 

in order to ensure resiliency, Federal 

agencies, when taking actions in and 

around floodplains, should include 

considerations of the effects of changing 

conditions, 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.38

E. Executive Order 13690, the Federal 

Flood Risk Management Standard and 

Subsequent Amendments to Executive 

Order 11988, and Revisions to the 1978 

Guidelines 

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.’’ 39

Executive Order 13690 amended 

Executive Order 11988 and established 

the FFRMS. It required FEMA to 

publish 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. 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. 

FEMA, acting on behalf of the 

Mitigation Framework Leadership 

Group, 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, 

2015.40 FEMA received over 556 

separate submissions.41 The final 

Revised Guidelines were issued on 

October 8, 2015.42 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 FFRMS. In response to public 

comments, the Mitigation Framework 

Leadership Group clarified the 

distinction between actions and 

Federally funded projects. 

On August 22, 2016, FEMA published 

an NPRM entitled ‘‘Updates to 

Floodplain Management and Protection 

of Wetlands Regulations To Implement 

Executive Order 13690 and the Federal 

Flood Risk Management Standard’’ in 

the Federal Register (81 FR 57402). The 

rulemaking would have revised FEMA’s 

regulations on ‘‘Floodplain Management 

and Protection of Wetlands’’ to 

implement Executive Order 13690. 

FEMA also proposed a supplementary 

policy entitled ‘‘FEMA Policy: Guidance 

for Implementing the Federal Flood Risk 

Management Standard (FFRMS)’’ 

(FEMA Policy 078–3), which would 

have further clarified how FEMA would 

apply the FFRMS. The notice of 

availability and request for comments 

for the supplementary policy also 

published in the August 22, 2016 

Federal Register at 81 FR 56558. On 

September 20, 2016, FEMA published a 

notice of data availability regarding a 

draft report, the 2016 Evaluation of the 

Benefits of Freeboard for Public and 

Nonresidential Buildings in Coastal 

Areas, which had been added to the 

docket for the proposed rule (81 FR 

64403). 

On August 15, 2017, the President 

issued Executive Order 13807 

(‘‘Establishing Discipline and 

Accountability in the Environmental 

Review and Permitting Process for 

Infrastructure Projects’’) which revoked 

Executive Order 13690. See 82 FR 

40463, Aug. 24, 2017. Accordingly, on 

March 6, 2018, in light of the revocation 

of Executive Order 13690, FEMA 


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43 86 FR 27967 (May 25, 2021). 

44See FEMA Policy 104–22–003, ‘‘Partial 

Implementation of the Federal Flood Risk 

Management Standard for Public Assistance 

(Interim),’’ June 3, 2022 found at https://

www.fema.gov/sites/default/files/documents/fema_

fp-104-22-0003-partial-implemetnation-ffrms-painterim.pdf (last accessed July 12, 2023) and FEMA 

Policy 206–21–003–0001, ‘‘Partial Implementation 

of the Federal Flood Risk Management Standard for 

Hazard Mitigation Assistance Program,’’ Dec. 7, 

2022 found at https://www.fema.gov/sites/default/ 

files/documents/fema_policy-fp-206-21-003-0001- 

implementation-ffrms-hma-program_122022.pdf 

(last accessed July 12, 2023). 

45Although the FFRMS describes various 

approaches for determining the higher vertical flood 

elevation and corresponding horizontal floodplain 

for Federally funded projects, it is not meant to be 

an ‘‘elevation’’ standard. The FFRMS is a resilience 

standard. The vertical flood elevation and 

corresponding horizontal floodplain determined 

using the approaches in the FFRMS establish the 

level to which a structure or facility must be 

resilient. This may include using structural or nonstructural methods to reduce or prevent damage; 

elevating a structure; or, where appropriate, 

designing it to adapt to, withstand, and rapidly 

recover from a flood event. See ‘‘Guidelines for 

Implementing Executive Order 11988, Floodplain 

Management, and Executive Order 13690, 

Establishing a Federal Flood Risk Management 

Standard and a Process for Further Soliciting and 

Considering Stakeholder Input’’ (Oct. 8, 2015), 

found at https://www.fema.gov/sites/default/files/ 

documents/fema_implementing-guidelinesEO11988-13690_10082015.pdf (last accessed July 

12, 2023). 

46See Executive Order 13690 Section 2(i), 80 FR 

6425, 6426 (Feb. 4, 2015). 

47See Guidelines, pgs. 36–37. 

withdrew the August 22, 2016 NPRM 

and supplementary policy (83 FR 9473). 

On May 20, 2021, the President issued 

Executive Order 14030 (‘‘ClimateRelated Financial Risk’’) 43 reinstating 

Executive Order 13690, thereby 

reestablishing the FFRMS. Executive 

Order 14030 also states that the Revised 

Guidelines issued in 2015 were never 

revoked and remain in effect. As such, 

FEMA reviewed its prior NPRM and 

proposed policy and decided to revise 

its approach to implementation based 

on lessons learned during and since the 

2016 rulemaking process. Specifically, 

FEMA first partially implemented the 

FFRMS by policy with respect to 

covered projects in existing floodplains 

in its Public Assistance and Hazard 

Mitigation Assistance programs.44

FEMA next proposes to fully implement 

the FFRMS through this updated 

revision to its regulations and an 

updated supplementary policy. 

F. Substantive Components of the 

FFRMS 

The FFRMS is a flexible framework to 

increase resilience against flooding and 

help preserve the natural values of 

floodplains and wetlands.45

Incorporating the FFRMS will expand 

the floodplain and require projects be 

built with higher resiliency. Applying 

the FFRMS will help ensure that 

Federally funded projects will last as 

long as intended. In addition, the 

FFRMS and revised guidelines require 

the evaluation of natural features and 

nature-based approaches, where 

possible, in the analysis of practicable 

alternatives in Step 3 of the decisionmaking process for all Federal actions. 

Under the FFRMS, a Federal agency 

may establish the floodplain for actions 

subject to the FFRMS using any of the 

following approaches: 

• Approach 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; 

• Approach 2: Freeboard Value 

Approach (FVA): Freeboard (1 percent 

annual chance flood elevation + X, 

where X is 3 feet for critical actions and 

2 feet for other actions); 

• Approach 3: 0.2-percent-annualchance Flood Approach (0.2PFA): 0.2 

percent annual chance flood (also 

known as the 500-year flood); or 

• Approach 4: the elevation and flood 

hazard area that result from using any 

other method identified in an update to 

the FFRMS.46

Each of the approaches is described in 

further detail below. 

FFRMS Approach 1: CISA. The 

FFRMS and Revised Guidelines state 

that the CISA is the preferred approach, 

and that Federal agencies should use 

this approach when data to support 

such an analysis are available. CISA 

uses existing, sound science and 

engineering methods (e.g., hydrologic 

and hydraulic analysis and methods 

used to establish current flood 

elevations and floodplain maps), 

supplemented with best available and 

actionable climate science and 

consideration of impacts from projected 

land cover/land use changes, long-term 

erosion, and other processes that may 

alter flood hazards over the lifecycle of 

the Federal investment.47 For areas 

vulnerable to coastal flood hazards, the 

CISA includes consideration of 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 sealevel-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. 

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-ofthe-art science in a manner appropriate 

to policies, practices, criticality, and 

consequences (risk). The CISA for 

critical actions would utilize the same 

methodology as used for non-critical 

actions that are subject to Executive 

Order 11988, as amended, 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 and Revised Guidelines define 

freeboard values as an additional 2 feet 

added to the 1 percent annual chance 

flood elevation, or, for critical actions, 

an additional 3 feet added to the 1 

percent annual chance flood elevation. 

In other words, the floodplain 

established by the 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, and 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 actions 

subject to the FFRMS 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 action. 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. 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 1 percent annual chance 

flood elevation applied to both example 

locations, the increase to the horizontal 

extent of the floodplain in FVA 

Illustration A is comparatively larger 

than the increase to the horizontal 

extent of the floodplain in 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 


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will vary depending on local 

topography. 

BILLING CODE 9111–66–P 

BILLING CODE 9111–66–C 


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FV A Illustration A 

FV A Illustration B 

~----~ _:_~:<~-j--:<' i-_::~---:~: 

VERTICAL EXTENT • 

- .... -.... ---- -
67880 Federal Register / Vol. 88, No. 189 / Monday, October 2, 2023 / Proposed Rules 

48See Revised Guidelines at 53. The Revised 

Guidelines suggest that agencies should apply a 

reasonableness standard to higher State, Tribal, 

Territorial, or local (STTL) floodplain management 

standards. FEMA has historically deferred to higher 

local codes and standards from an STTL 

government in 44 CFR 9.11(d)(6) and will continue 

the practice through this rulemaking, rather than 

applying a case-by-case reasonableness analysis and 

believes this is appropriate because of programspecific controls that ensure higher standards are 

reasonable. Specifically, in the PA program, if an 

STTL government has adopted a code or standard 

that exceeds minimum standards set by FEMA, 

regulations at 44 CFR 206.226(d) require the code 

to be in place and adopted pre-disaster which 

guards against an STTL government’s adoption of 

unreasonably high codes and standards. With 

respect to mitigation projects, they are all required 

to be cost-effective as a minimum criteria of 

eligibility. See 42 U.S.C. 5170c(a); 42 U.S.C. 

5133(b); 42 U.S.C. 4104c(c)(2)(A). This project-byproject cost-effectiveness analysis should guard 

against any STTL standards that are unreasonably 

high. 

49See ‘‘Billion-Dollar Weather and Climate 

Disasters,’’ https://www.ncdc.noaa.gov/billions, 

DOI: 10.25921/stkw–7w73 (last accessed July 12, 

2023). 

50For example, FEMA data indicates 

approximately 18,068 eligible applicants for public 

assistance have participated in the 8-step process 

required by 44 CFR part 9 between 2012 and 2021. 

51See http://www.asfpmfoundation.org/aceimages/forum/Meeting_the_Challenge_of_

Change.pdf. 

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. Under 

this approach the same floodplain and 

elevation is used for critical and noncritical actions. The FFRMS and 

Revised Guidelines note that often the 

0.2 percent annual chance flood 

elevation data provided 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 flood elevations. The FFRMS and 

Revised Guidelines encourage 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 or use the FVA 

approach instead for the proposed 

investment. 

FFRMS Approach 4: Update to 

FFRMS. The Mitigation Framework 

Leadership Group in consultation with 

the Federal Interagency Floodplain 

Management Task Force must reassess 

the FFRMS annually after seeking 

stakeholder input, and provide 

recommendations to the WRC to update 

the FFRMS. if warranted. The WRC 

must issue an update to the FFRMS at 

least every 5 years. The updates ensure 

the floodplain determination process for 

actions subject to the FFRMS reflects 

current methodologies. 

Further Guidance on Application of 

the FFRMS Approaches To Establishing 

the Floodplain. The FFRMS and 

Revised Guidelines state that when an 

agency does not use CISA in a coastal 

flood hazard area and where the FEMA 

0.2 percent annual chance flood 

elevation does not include wave height, 

or a wave height has not been 

determined, the 0.2 percent annual 

chance elevation should not be used 

and the FVA should be used instead. 

The FFRMS and Revised Guidelines 

note that where the 0.2-percent-annualchance-flood elevation does not 

consider wave action, the result will 

likely either be lower than the current 

base flood elevation or the base flood 

elevation plus applicable freeboard. 

Where wave action has been 

incorporated into the 0.2 percent annual 

chance elevation, the 0.2 percent annual 

chance elevation can be used. 

The Guidelines state that for riverine 

flood hazard areas agencies may select 

either the FVA, or 0.2 percent annual 

chance flood elevation approach (or a 

combination of approaches, as 

appropriate) when actionable science is 

not available and an agency opts not to 

follow the CISA. It states that the agency 

is not required to use the higher of the 

elevations but may opt to do so. The 

elevation standards of the FFRMS are 

not intended to supplant applicable 

State, Tribal, territorial, or local 

floodplain protection standards. If such 

standards exceed the FFRMS, an agency 

should apply those standards if the 

agency determines the application of the 

standards is reasonable in light of the 

goals of Executive Order 11988, as 

amended.48

G. FEMA’s Implementation of the 

FFRMS and the Revised Guidelines 

When Executive Order 13690 was 

issued, and again when it was reinstated 

with Executive Order 14030, FEMA 

evaluated the application of 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. Between 1980 and 2021, the 

United States experienced 35 flooding 

disaster events, each with damages 

totaling over $1 billion or more, and a 

total of $164.2 billion in damages for 

those 35 flooding disasters.49 FEMA, as 

a responsible steward of Federal funds, 

must ensure it does not needlessly 

repeat Federal investments in the same 

structures and/or facilities after flooding 

events. In addition, the FFRMS will 

help support the thousands of 

communities across the country 

recovering from disasters, seeking to 

mitigate future impacts of flooding and 

to strengthen infrastructure and other 

community assets to be more resilient to 

flood risk.50 FEMA recognizes that the 

need to make structures resilient also 

requires an equitable and flexible 

approach to adapt to the needs of the 

Federal agency, local community, and 

the circumstances surrounding each 

project or action consistent with 

evolving science and engineering 

advancements that demonstrate a better 

understanding of flood risk and flood 

risk reduction. 

The current floodplain policy was 

designed to accept a specific level of 

flood risk utilizing the 1 percent or 0.2 

percent annual chance floodplains. 

However, these values do not 

incorporate changing future conditions 

caused by increasing severity of 

flooding and other associated issues 

such as coastal erosion. The result is 

that the current level of the 1 percent 

annual chance and 0.2 percent annual 

chance flood elevation can 

underestimate the flooding risk to a 

particular action and leave communities 

at higher risk to future flooding events. 

Where CISA is available and 

actionable, the risk of flooding can be 

determined based on climate science to 

identify the appropriate level of risk 

protection for an action based on factors 

such as local flood characteristics, 

criticality of the action, and planned 

lifespan of the action. As CISA is based 

on the available and actionable science 

for a specific location and action, the 

result is a determination of the 

appropriate level of resiliency to design 

minimization measures. Other methods 

may lower the flood risk as they are 

above the current floodplain policy, but 

in some instances, projects may be built 

to a higher resiliency than required 

(overbuilt) or to a lower resiliency than 

needed (underbuilt).51

FEMA intends to implement 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 

11988, as amended, and the Revised 

Guidelines to make them more 

accessible to stakeholders; (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 use natural features and nature-based 

approaches, where possible, when 

developing alternatives to the proposed 

action. These revisions also update 

other sections of the 8-step process to 

reflect current FEMA policies and 


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52FEMA considers data to be available and 

actionable based on the Revised Guidelines. 

Appendix H of the Revised Guidelines states that 

best available data and science are transparent— 

clearly outlines assumptions, applications, and 

limitations; technically credible—transparent 

subject matter or more formal external peer review, 

as appropriate, of processes and source data; 

usable—relevance and accessibility of the 

information to its intended users. For the climateinformed approach, usability can be achieved by 

placing climate-related scenarios into appropriate 

spatial, temporal, and risk-based contexts; 

legitimate—perceived by stakeholders to conform to 

recognized principles, rules, or standards. 

Legitimacy might be achieved through existing 

government planning processes with the 

opportunity for public comment and engagement; 

and flexible—scientific, engineering, and planning 

practices to address climate change-related 

information are evolving. To respond, agencies 

need to adapt and continuously update their 

approaches consistent with agency guidelines and 

principles. Also under Appendix H, actionable 

science consists of theories, data, analyses, models, 

projections, scenarios, and tools that are: relevant 

to the decision under consideration; reliable in 

terms of its scientific or engineering basis and 

appropriate level of peer review; understandable to 

those making the decision; supportive of decisions 

across wide spatial, temporal, and organizational 

ranges, including those of time-sensitive 

operational and capital investment decisionmaking; and co-produced by scientists, 

practitioners, and decision-makers, and meet the 

needs of and are readily accessible by stakeholders. 

See Appendix H at pgs. 5–6. 

53For purposes of this rulemaking, overbuilding 

and underbuilding refers to building or protecting 

structures and facilities to a higher or lower 

resilience standard than necessary to reduce flood 

risks. 

processes and provide additional 

clarity. 

Making the Initial Floodplain 

Determination. As stated above, the 

FFRMS changed the definition of 

‘‘floodplain’’ with respect to actions 

subject to the FFRMS (i.e., actions 

involving the use of FEMA 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 and take actions that are 

informed by the best available and 

actionable science. Agencies should use 

the CISA approach when the best 

available, actionable hydrologic and 

hydraulic data and methods that 

integrate current and future changes in 

flooding based on climate science are 

available for actions subject to the 

FFRMS.52 For actions which do not 

meet the definition of an action subject 

to the FFRMS, an agency should 

continue to use the historical definition 

of floodplain with minor clarifying 

revisions. This means that one of the 

first steps an agency must take is to 

determine the appropriate floodplain. 

Figure 1 illustrates the process by which 

FEMA would decide which floodplain 

would apply to an action subject to the 

FFRMS compared to an action that 

would not be subject to the FFRMS. 

Selection Between the FFRMS 

Approaches. In selecting between the 

FFRMS approaches, FEMA sought to 

retain sufficient flexibility to account for 

updates to the FFRMS and yet also 

implement a framework that is 

sufficiently standardized to be easily 

understood and consistently applied to 

ensure an appropriate level of resilience 

without overbuilding.53 These 

considerations have led FEMA to 

propose a policy that considers the type 

and criticality of the action involved, 

the availability and actionability of the 

data, and equity concerns, as further 

explained in the current proposed 

supplementary policy. 

FEMA proposes to implement the 

FFRMS by adopting the flexible 

framework detailed in the Revised 

Guidelines. Under this proposal, FEMA 

would provide additional guidance 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 


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Process to Establish the Appropriate 

Floodplain for the 8-Step DecisionMaking Process NO 

Is action a 

cnt1cal action? 

YES Use the 

0 2'1o AC 

floodplain 

NO. Use the 

1%AC 

floodplain 

Is action 

subJect to the 

FFRMS? 

1 When using CISA, the floodplain must be at least as restrictive as: 

• For non -critical actions, the 1%ACfloodplain 

• For critical actions, the 0.2% AC floodplain 

YES 

NO 

2 In coastal areas, if 0.2%AC flood elevations do not account for wave action, the appropriate FVA must be used. 

Figure 1: Process to Establish the Appropriate Floodplain for the 8-Step DecisionMaking Process 
67882 Federal Register / Vol. 88, No. 189 / Monday, October 2, 2023 / Proposed Rules 

54 81 FR 56558. 

55See ‘‘Consensus-Based Codes, Specifications, 

and Standards for Public Assistance (Version 2)’’ 

found at https://www.fema.gov/assistance/public/ 

policy-guidance-fact-sheets/section-1235bconsensus-based-codes-and-standards (last 

accessed July 12, 2023). 

56See 44 CFR part 60.3 for the NFIP minimum 

floodplain management standards. 

57FEMA Flood Map Products. See https://

www.fema.gov/flood-maps/products-tools/products. 

(Last accessed July 27, 2023). 

58See 44 CFR 60.1(d). 

59See 44 CFR 59.1. 

60See https://www.fema.gov/floodplainmanagement/community-ratingsystem#participating (last accessed July 12, 2023). 

61See 44 CFR 9.11(d)(6). 

62See National Research Council, ‘‘Risk Analysis 

and Uncertainty in Flood Damage Reduction 

Studies,’’ Table 7–1 pg. 144, found at https://

nap.nationalacademies.org/catalog/9971/riskanalysis-and-uncertainty-in-flood-damagereduction-studies (last accessed July 12, 2023). Note 

that when downloaded in portable document 

format, table 7–1 is cut off. When viewed in the web 

version, Column 14 provides the return period for 

a 3 foot freeboard value. 

63See Jeremy Martinich, James Neumann, 

Lindsay, Ludwig, and Lesley Jantarasami, ‘‘Risks of 

sea level rise to disadvantaged communities in the 

United States’’ Mitig Adapt Strateg Glob Change 

(2013) 18:169–185, found at https://

link.springer.com/article/10.1007/s11027-011-9356- 

0 (last accessed July 12, 2023). 

64See Guidelines at pg. 6. 

the best available information to inform 

current and future flood risk, the type 

and criticality of the action, and equity. 

FEMA’s 2016 supplementary policy 

proposed to use the FVA to establish the 

elevation and associated floodplain for 

non-critical actions. For critical actions, 

FEMA’s 2016 supplementary policy 

proposed to allow the use of the FVA or 

the CISA, but only if the elevation 

established under the CISA was higher 

than the elevation established under the 

FVA.54

For the reasons stated below, FEMA’s 

current proposed supplementary policy 

proposes a different approach. 

Specifically, FEMA’s current proposed 

supplementary policy prefers the CISA 

floodplain where data is available and 

actionable. Where CISA data is not 

available and actionable, the 

supplementary policy selects Where 

CISA data is not available and 

actionable, the supplementary policy 

selects either the FVA or 0.2PFA to 

establish the floodplain. Specifically, for 

critical actions, the supplementary 

policy requires use of the higher of the 

FVA+3 or 0.2PFA. For non-critical 

actions, the supplementary policy 

requires the use of the lower of the 

FVA+2 or 0.2PFA. For actions not 

subject to the FFRMS, the floodplain 

would continue to be the 0.2 percent 

annual chance floodplain for critical 

actions and the 1 percent annual chance 

floodplain for non-critical actions. Other 

FEMA requirements to follow consensus 

codes and standards 55 and to meet NFIP 

and State, local, Tribal, and territorial 

standards will continue to apply.56 In 

doing so, FEMA believes the 8-step 

process with FFRMS implementation 

will result in a level of resiliency that 

is effective for the action and also 

equitable for the community by utilizing 

available and actionable scientific data 

to tailor the future flooding risk to the 

action. 

The FVA Considered. FEMA 

considered using the FVA as the default 

approach for both critical and noncritical actions subject to the FFRMS. A 

choice to use the FVA as a default 

would reflect the practical need for 

standardization in the earlier stages of 

implementation. The FVA elevation is 

computed using the base flood 

elevation, and FEMA may use the same 

sequence it has followed to determine 

the base flood elevation for the purposes 

of establishing the FVA elevation. This 

would still allow for the use of widely 

available FEMA regulatory products, 

such as Flood Insurance Rate Maps and 

Flood Insurance Study Reports.57 By 

following the same sequence that FEMA 

has historically used for determining the 

appropriate elevation 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 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. 

Additionally requiring the use of the 

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.58 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.59 Consistent with 

FEMA’s Community Rating System 

(CRS) policy, 1,380 of the 1,740 CRSparticipating localities have adopted 

freeboard requirements that exceed 

current Federal standards within 50 

states.60 FEMA supports that adoption 

by requiring that all of its projects are 

consistent with more restrictive Federal, 

State, or local floodplain management 

standards.61

The FVA, however, is not without 

challenges. First, while application of 

the FVA relies on data that is more 

available and readily accessible, it is not 

always the most suitable information to 

inform flood risk. Although FVA uses a 

fixed freeboard value across the nation, 

the FVA results in widely varying 

impacts to the current and future risk to 

the project. In some locations, applying 

the FVA+3 reduces the chance of being 

impacted by current flooding conditions 

by 2 times, while in other cases 

applying the FVA might reduce such 

chances by 10 times or more.62 This 

wide variation in risk reduction using 

the FVA approach may result in 

underbuilding or overbuilding in some 

areas. Without data narrowly tailored to 

the location’s specific risks, the FVA 

may result in building or protecting 

structures and facilities to a higher or 

lower resilience standard than necessary 

to reduce flood risks. This potential for 

overbuilding or underbuilding may raise 

equity concerns for underserved 

communities seeking to rebound 

quickly and effectively from a disaster. 

Those communities may struggle to pay 

the additional costs required to build to 

a higher resilience standard than might 

be necessary if FEMA were to instead 

apply the CISA, thus unnecessarily 

delaying disaster recovery.63

Alternatively, communities may be 

more vulnerable to future flooding and 

therefore repair expenses where 

building to a lower resilience standard 

under the FVA than if FEMA were to 

apply CISA. 

The 0.2PFA Considered. FEMA 

considered using the 0.2PFA, as the 

horizontal extent of the 0.2PFA 

floodplain is already mapped in some 

locations. Further, the 0.2PFA results in 

a much more consistent reduction in the 

chances of being impacted by a flood for 

projects in different areas. This is 

because the 0.2PFA floodplain and 

elevation are calculated to have the 

same probability of occurrence 

everywhere.64 The 0.2PFA may result in 

a higher elevation than the FVA in some 

circumstances and lower elevations in 

other areas. FEMA is challenged by the 

limited national availability of 

information on the 0.2 percent annual 

chance flood elevation and the 

additional costs associated with 

producing this information where it is 

not yet available. While most areas of 

the country have 1 percent annual 

chance floodplain information and the 

necessary topographical information to 

determine the horizontal extent under 


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65FEMA riverine flood hazard data inventory 

information comes from the Coordinated Needs 

Management Strategy dataset. 

66See Revised Guidelines at 57. 

67While FEMA believes that the average flood 

risk will generally continue to increase nationwide 

due to changing conditions, 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. 

68See 44 CFR 9.7(a)(1) detailing the current 

floodplain for critical and non-critical actions. 

69See Fourth National Climate Assessment, 

Volume II, found at https://nca2018.globalchange.

gov (last accessed July 12, 2023) and the ‘‘Federal 

Flood Risk Management Standard Climate-Informed 

Science Approach (CISA) State of the Science 

Report,’’ found at https://www.whitehouse.gov/wpcontent/uploads/2023/03/Federal-Flood-RiskManagement-Standard-Climate-Informed-ScienceApproach-CISA-State-of-the-Science-Report.pdf 

(last accessed Aug. 14, 2023). 

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 20 percent of 

effective flood zones have detailed 

floodplain boundaries of the 0.2 percent 

annual chance floodplain.65 There is 

some additional 0.2 percent annual 

chance floodplain mapping coverage 

available from FEMA products that are 

in preliminary or draft stages, and from 

other Federal, state, and local agencies. 

Data showing the boundaries and 

elevations for the 0.2 percent annual 

chance flood, however, is far less 

available than information for the 1 

percent annual chance flood. 

Additionally, in coastal areas, the 

FFRMS requires Federal agencies to use 

the FVA as the minimum elevation 

when not using the CISA, if the 0.2 

percent annual chance flood 

information depicted on FEMA’s 

regulatory products considers stormsurge hazards but not wave action, and 

wave action data cannot be obtained 

from other sources.66 This requirement 

is essential to ensure the effectiveness of 

this resilience standard. Only some 

areas have 0.2PFA with wave action 

information. Finally, there could also be 

equity concerns related to 

underbuilding or overbuilding to this 

standard, as again communities seeking 

to rebound quickly and effectively from 

a disaster may struggle to pay the 

additional costs required to build to a 

higher resilience standard than might be 

necessary if FEMA were to instead 

apply the CISA, thus unnecessarily 

delaying disaster recovery. Given the 

challenges with information availability, 

costs, and certainty for stakeholders, 

FEMA is not proposing the 0.2PFA for 

all actions subject to the FFRMS. 

However, the consistency provided by 

the 0.2PFA when the data is available 

provides a check against the variability 

of the FVA approach, so FEMA plans to 

use the two approaches together. 

The CISA Considered. Consistent with 

the Revised Guidelines, FEMA is 

proposing the use of CISA as the 

preferred approach where data is 

available and actionable for both critical 

and non-critical actions as CISA uses a 

more site-specific approach to predict 

flood risk based on future conditions. 

FEMA believes CISA has the potential 

to be the best and most well-informed 

approach to building resilience in an 

equitable manner and ensuring a 

reduction in disaster suffering. While all 

three approaches consider the effects of 

changing conditions on current and 

future flood risk, CISA is the only 

approach that uses climate science data 

to determine the appropriate floodplain 

for actions subject to the FFRMS. The 

FVA is a standard of protection set 

within a margin of error and can result 

in underbuilding or overbuilding 

because the data is not tailored to 

consider the flood risk in a specific 

location. The 0.2PFA provides a 

consistent reduction in flood risk but 

the data is often not available. Neither 

approach uses climate science to 

determine future flood risk for specific 

locations. CISA is the only approach 

that ensures projects are designed to 

meet current and future flood risks 

unique to the location and thus ensures 

the best overall resilience, cost 

effectiveness, and equity. CISA provides 

a forward-looking assessment of flood 

risk based on likely or potential climate 

change scenarios, regional climate 

factors, and an advanced scientific 

understanding of these effects. CISA 

allows FEMA to make this assessment 

specific to the communities involved 

and to tailor the assessment to their 

specific resilience needs, factoring in 

cost-effectiveness of resilience efforts 

and equity. As explained above, the 

FVA approach presents a uniform 

solution that is not sufficiently tailored 

to meet specific community needs and 

lacks full consideration of future 

conditions. With a mandate to expand 

the floodplain and elevate to a specific 

height without additional 

considerations, the FVA approach can 

result in a community’s project being 

built to a higher or lower standard than 

necessary for the community’s intended 

use and result in additional expense to 

the community. Similarly, the 0.2PFA 

may result in a community’s project 

being built to a higher or lower standard 

than necessary for the community’s 

intended use and result in additional 

expense to the community because the 

0.2PFA lacks full consideration of future 

conditions. Where available, CISA 

presents the best data available on 

current and future conditions to help 

FEMA work with communities to 

implement resilient, cost-effective 

projects. 

For critical actions, FEMA is 

proposing to utilize elevations 

determined by applying CISA so long as 

that elevation is at least the elevation of 

the 0.2PFA. Under this proposal, FEMA 

could choose to allow use of the CISA, 

even if the resulting elevation is lower 

than the application of the FVA. This 

approach would give FEMA and its 

recipients more flexibility in 

implementing the standard, would 

enable FEMA and its recipients to build 

to an elevation based on the best 

available science taking criticality into 

account, would ensure adequate 

protection in those areas that are 

projected to experience future flood 

elevations beyond those identified using 

the FVA or 0.2PFA, and would provide 

a pathway to relief for those areas that 

experience declining flood risks.67

Similarly, for non-critical actions, 

FEMA is proposing to utilize elevations 

determined by applying CISA so long as 

that elevation is at least the elevation of 

the 1 percent annual chance flood 

elevation. Combined, these options 

would balance the objectives that 

applicants are building in an equitable 

manner to the most protective level 

based on the best available, actionable 

hydrologic and hydraulic data and 

methods that integrate current and 

future changes in flooding based on 

climate science without overbuilding 

and would eliminate the potential for a 

scenario where an applicant was 

allowed to build to a lower elevation 

than previously required for critical and 

non-critical actions under FEMA’s 

current implementation of Executive 

Order 11988.68

As explained above, FEMA 

understands that the availability and 

actionability of data is a key factor in 

completing this analysis in a consistent, 

equitable manner. Since the 

introduction of the CISA in 2015, 

additional data has become available to 

better inform CISA.69 FEMA believes 

data availability and actionability will 

continue to advance for CISA in the 

future. However, as actionable climate 

data are not currently available for all 

locations, FEMA is proposing the FVA 

and 0.2PFA alternatives in the absence 

of actionable CISA data. 

For coastal floodplains, one of the 

primary considerations associated with 

CISA is determining what the projected 


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70See generally ‘‘Interagency Sea Level Rise 

Scenario Tool’’ found at https://sealevel.nasa.gov/ 

data_tools/18 (last accessed July 12, 2023), ‘‘2022 

Sea Level Rise Technical Report’’ found at https:// 

oceanservice.noaa.gov/hazards/sealevelrise/ 

sealevelrise-tech-report.html (last accessed July 12, 

2023), ‘‘Global and Regional Sea Level Rise 

Scenarios for the United States’’ found at https:// 

aambpublicoceanservice.blob.core.windows.net/ 

oceanserviceprod/hazards/sealevelrise/noaa-nostechrpt01-global-regional-SLR-scenarios-US.pdf 

(last accessed July 12, 2023), ‘‘Sea Level Rise 

Viewer,’’ found at https://coast.noaa.gov/ 

digitalcoast/tools/slr.html (last accessed July 12, 

2023). 

71See Revised Guidelines at 55. 

future sea level rise will be for the area 

in which the project will be completed. 

There are currently multiple interagency 

reports and agency tools that provide 

scenario-based projections of sea level 

rise for coastal floodplains.70 Sea level 

rise projections are just one potential 

factor in a climate-informed science 

approach. FEMA expects that more data 

will be developed supporting broaderbased application of CISA as agencies 

implement the FFRMS and that this 

data will be considered and 

incorporated into future updates of the 

FFRMS and FEMA’s implementation 

thereof. FEMA requests comment on the 

availability of actionable, planning-scale 

and/or project-scale climate data with 

respect to coastal and riverine 

floodplains. 

In addition to the data challenges, 

there are a number of factors in deciding 

how to apply the 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 CISA methodology 

account for project-specific factors such 

as the criticality of the action, the risk 

to which the action will be exposed, the 

anticipated level of investment, and the 

lifecycle of the action.71 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 50 years. The most aggressive 

projection might indicate that the 

project should be elevated 10 feet above 

the base flood elevation for a critical 

action. However, the applicant may 

determine that this project is not 

intended to be functional for 50 years, 

the action is not critical, and justify a 

lesser projection based on criticality and 

expected lifespan. FEMA anticipates 

these types of decisions may be more 

standardized and accessible with a suite 

of Federal tools under development to 

assist FEMA and stakeholders in 

establishing the CISA floodplain. 

Further, FEMA’s proposed approach 

focuses on leveraging the best available 

data to inform flood risk, generally 

allowing communities that have 

actionable data specific to their 

locations to utilize that information in 

the 8-step process. FEMA requests 

comment regarding how FEMA could 

implement the CISA using a publicly 

accessible, standardized, predictable, 

flexible, and cost-effective methodology. 

FEMA also seeks comment on whether 

the agency should accept locally 

available CISA data and methods. 

Other Options Considered. FEMA also 

considered whether it should alter its 

proposal for preferring use of the CISA 

in relation to the FVA (or 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 CISA, FVA, and the 

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 

protecting these critical assets to the 

highest protective level. However, as 

explained above, this approach may 

lead to overbuilding and thus not be the 

most cost-effective or equitable 

approach. FEMA believes that its 

proposed approach is sufficiently 

protective of critical action and would 

be less expensive and complex to 

administer and implement than the 

alternative approach described above as 

the alternative approach would require 

a determination of elevation under all 

three approaches before a project could 

proceed; nonetheless, FEMA welcomes 

comment on this alternative approach. 

Alternatively, FEMA could choose to 

require use of the highest standard for 

all actions, regardless of criticality. As 

explained above, while this approach 

would ensure that applicants were 

building all actions to the most 

protective level, this approach may lead 

to overbuilding and thus not be the most 

cost-effective, equitable approach 

particularly for non-critical actions. 

FEMA believes that its proposed 

approach is sufficiently protective of all 

actions and would be less expensive 

and complex to administer and 

implement than the alternative 

approach described above as this 

alternative approach would always 

require a determination of elevation 

under all three approaches before a 

project could proceed; nonetheless, 

FEMA welcomes comment on this 

alternative approach. 

FEMA also considered requiring the 

use of the 0.2PFA when CISA is not 

available for non-critical actions rather 

than the lower of the 0.2PFA or FVA. As 

explained above, FEMA notes the 

challenges with 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 

yet available. Additionally, in coastal 

areas, the FFRMS requires Federal 

agencies to use the FVA as the 

minimum elevation when not using the 

CISA, if the 0.2 percent annual chance 

flood information depicted on FEMA’s 

regulatory products considers stormsurge hazards but not wave action, and 

wave action data cannot be obtained 

from other sources. This requirement is 

essential to ensure the effectiveness of 

this resilience standard. Only some 

areas have 0.2PFA with wave action 

information. Finally, there could also be 

equity concerns related to 

underbuilding or overbuilding to this 

standard, as again communities seeking 

to rebound quickly and effectively from 

a disaster may struggle to pay the 

additional costs required to build to a 

higher resilience standard than might be 

necessary if FEMA were to instead 

apply the CISA, thus unnecessarily 

delaying disaster recovery. 

Alternatively, communities may be 

more vulnerable to future flooding and 

therefore repair expenses where 

building to a lower resilience standard 

under the FVA than if FEMA were to 

apply CISA. Given the challenges with 

information availability and costs, 

FEMA is not proposing the 0.2PFA as 

the exclusive alternative for non-critical 

actions when CISA is not available and 

actionable; nonetheless, FEMA 

welcomes comment on this alternative 

approach. 

Based on the foregoing, FEMA 

proposes to focus on the best available 

and actionable information to inform 

current and future flood risk, the type 

and criticality of the action, and equity 

when determining the approach to 

utilize for the floodplain determination. 

Where available and actionable, FEMA 

proposes to leverage the CISA to 

establish the floodplain for both critical 

and non-critical actions. Where the 

CISA is not available and actionable, the 

agency proposes to use the lower of the 

FVA or 0.2PFA to establish the 

floodplain for non-critical actions and 

the higher of the FVA floodplain or the 

0.2PFA for critical actions. Where the 

0.2PFA is not available, or where wave 

action is not addressed in the 0.2PFA, 

the FVA is proposed for critical actions. 

This proposal balances flexibility with 

standardization, is consistent with 

FEMA’s encouragement to communities 

to adopt more resilient floodplain 

management standards and reflects the 

priority that FEMA places on ensuring 

adequate planning for critical actions 


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72See Guidelines at pg. 4. 

73See Guidelines at pg. 67. 

74Floodproofing of areas below the BFE in 

residential buildings is generally not permitted 

under the NFIP unless communities have been 

granted an exception to permit floodproofed 

basements. See 44 CFR 60.3. The NFIP restriction 

against floodproofing of residential structures 

reflects FEMA’s longstanding policy position that 

residential structures require a higher standard of 

resilience due to the increased potential for loss of 

human life. Floodproofing is also not recommended 

for residential structures under other FEMA 

programs. See Hazard Mitigation Assistance 

Technical Review Job Aid Series ‘‘Dry 

Floodproofing Technical Review,’’ at pg. 7 found at 

https://www.fema.gov/sites/default/files/ 

documents/fema_technical-job-aid-dryfloodproofing.pdf (last accessed July 12, 2023) 

(referencing ASCE24—Flood Resistant Design and 

Construction Section 6.2, which limits the use of 

dry floodproofing to non-residential structures and 

non-residential areas of mixed-use structures 

located outside of High-Risk Flood Hazard Areas, 

Coastal High Hazard Areas and Coastal A Zones). 

Consistent with the NFIP regulations and other 

FEMA policies, the agency generally does not fund 

floodproofing of residential structures as a flood 

minimization measure to meet current 44 CFR 9.11 

requirements. 

75For example, see Low-Water Crossings: 

Geomorphic, Biological, and Engineering Design 

Considerations at https://www.fs.usda.gov/t-d/ 

pubs/pdf/LowWaterCrossings/Lo_pdf/1_Intro.pdf 

(last accessed July 12, 2023) and Best Practice: 

Construction design saves money, prevents future 

damage at https://www.fema.gov/blog/best-practiceconstruction-design-saves-money-prevents-futuredamage damage (last accessed July 12, 2023). 

76See the Revised Guidelines at Appendix H 

‘‘Climate-Informed Science Approach and 

Resources.’’ 

while balancing cost and equity 

considerations. 

Requiring the use of the higher of the 

FVA floodplain or the 0.2PFA 

floodplain for critical actions where 

CISA is not available and actionable is 

consistent with the Revised Guidelines’ 

direction that agencies use higher 

standards for actions that they 

determine to be critical actions.72 The 

continued emphasis on the importance 

of making critical actions more resilient 

demonstrates an ongoing concern that 

the risks of flooding for many critical 

actions cannot be minimized without 

higher standards. The criticality of the 

action makes the risk of flooding too 

great, and a higher resilience standard is 

appropriate to best reduce that risk. 

The Revised Guidelines further 

recognize the importance of 

consideration of impacts to vulnerable 

populations, including those at risk to 

impacts of flooding due to their location 

or because they are overburdened, lack 

resources, or have less access to 

resources.73 Consistent with these 

concerns, FEMA’s proposed 

supplementary policy would require the 

lower of the FVA floodplain or the 0.2 

PFA floodplain for non-critical actions. 

FEMA believes the lower approach 

would help reduce the burden on 

communities by addressing concerns 

related to overbuilding, particularly in 

underserved communities seeking to 

rebound quickly and effectively from a 

disaster. Selecting the lower approach 

for non-critical actions will still result 

in a higher level of resilience than the 

current requirements under part 9 while 

also taking equity and cost-effectiveness 

considerations into account. 

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 74 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 could have a negative impact on 

affected communities’ disabled and 

elderly populations if appropriate 

accommodations are not made. Also, 

even if the homes of people with 

disabilities are elevated and made 

accessible, other elevated single- and 

multi-family housing stock in the 

community may become inaccessible if 

appropriate accommodations are not 

made. It is crucial for community 

sustainability and integration of people 

with disabilities that buildings impacted 

by FFRMS requirements be made to 

comply with all accessibility 

requirements. 

In light of the potential 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 ensure accessibility 

requirements are met for properties that 

would be impacted by this rulemaking. 

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. To make the floodplain 

determination and establish the proper 

resilience standard under each 

approach, FEMA intends to leverage its 

existing processes in each of its grant 

programs for ensuring compliance with 

Executive Order 11988, as amended. 

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 

or affects the floodplain and whether it 

is necessary to apply the 8-step process. 

FEMA is available to assist applicants 

with the 8-step process and 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 the FFRMS and 

Revised Guidelines. Once FEMA has 

made the determination that an action is 

subject to the FFRMS that requires a 

determination on which FFRMS 

approach to apply, the agency must then 

decide where the floodplain lies. FEMA, 

in conjunction with other Federal 

agencies, will work to maximize the 

availability of data showing the 

horizontal extent of the expanded 

horizontal floodplain that can be used 

for the CISA, the FVA, and the 0.2PFA 

for use on FFRMS following the 

approach detailed in § 9.7 below. 

Determination of the FFRMS floodplain 

will generally require data on current 

conditions and floodplains, future sea 

level rise or other changes expected to 

impact future flood conditions, and 

ground elevations. All of these data are 

relevant to determining additional areas 

that may be inundated by increased 

flooding in the future. FEMA’s approach 

to determining the floodplain will also 

utilize available, actionable non-FEMA 

data from other sources, including other 

Federal agencies, State, Tribal, 

territorial, and local governments. 

Establishing the FFRMS Resilience 

Standard Under Each Approach. 

FFRMS is a resilience standard 

requiring Federal investments to be 

more resilient against future flood 

conditions. FFRMS provides methods 

for determining a flood elevation to use 

in minimizing current and future flood 

risk for many actions in or affecting the 

floodplain, particularly for elevation of 

structures. However, other types of 

projects, including non-structure 

facilities, cannot reasonably be elevated 

above the FFRMS flood elevation and 

must achieve resilience through other 

minimization measures.75

The CISA 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.76 In 

particular, FEMA will use Appendix H 

of the Revised Guidelines titled 


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‘‘Climate-Informed Science Approach 

and Resources’’ to guide its decisionmaking. 

FEMA recognizes that the CISA is a 

developing process and that there is 

uncertainty in the considerations and 

factors that will come up during an 

CISA analysis. As such, FEMA is not 

able to develop an exhaustive set of 

regulatory criteria for determining 

whether a given methodology is 

appropriate. However, FEMA recognizes 

that regulatory transparency reduces 

uncertainty for its recipients, and it will 

provide further guidance and 

information in the future, as 

appropriate, as the agency’s experience 

in implementing 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 bestavailable, 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), longterm 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 and Revised Guidelines 

describe the 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 

proposed § 9.7(c) 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 regulatory 

products to information which 

approximates the geographic area of the 

floodplain, to areas with no information. 

Where FEMA has issued a regulatory 

product, FEMA could obtain the flood 

elevation from the regulatory product. 

FEMA may also seek detailed 

information from the list of sources in 

proposed § 9.7(c)(3)(i)–(x). 

The 0.2PFA is the elevation of the 0.2 

percent annual chance flood. Where 

FEMA proposes to use this approach, 

the agency would 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, utilizing the best 

available information. FEMA would first 

rely on the 0.2 percent annual chance 

flood elevation from the best available 

information, including information 

reported in a FEMA regulatory product, 

then seek information from additional 

sources, before finally seeking the 

assistance of an engineer. 

IV. Discussion of the Proposed Rule 

As noted above, this proposed rule 

would implement Executive Order 

11988, as amended, the FFRMS, and the 

Revised Guidelines as part of FEMA’s 

floodplain management regulations 

while also updating FEMA’s 8-step 

process. 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 

Severability 

FEMA proposes to amend § 9.3 to 

remove the authorities section as 

redundant, and to replace it with a 

severability section. In the event that 

any portion of the proposed rule is 

declared invalid, FEMA intends that the 

remaining provisions of 44 CFR part 9 

be severable. A severability clause is a 

standard legal provision. It indicates 

FEMA’s intent that if a court finds that 

a specific provision of a rule is 

unlawful, the court should allow the 

remainder of the rule to survive. Those 

provisions that are unaffected by a legal 

ruling can be implemented by an agency 

without requiring a new round of 

rulemaking simply to promulgate 

provisions that are not subject to a court 

ruling. 

Conforming Changes to Definitions 

FEMA proposes to amend § 9.4 to 

reflect the new definitions required by 

the FFRMS and Revised Guidelines 

while also updating other definitions to 

clarify terms and leverage common 

usage that has evolved since the 

regulation was issued. As noted above, 

the most significant definitional change 

introduced by the FFRMS is the change 

to the meaning of ‘‘floodplain.’’ As 

discussed in more detail below, in order 

to harmonize this change in § 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 ‘‘Actions Subject to 

the FFRMS’’ 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 11988, as 

amended, and the 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 an ‘‘action 

subject to the FFRMS.’’ Under the 

proposed rule, if FEMA determines that 

the action is a 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 an action subject to the 

FFRMS and if the action is considered 

non-critical, the 1 percent annual 

chance floodplain applies. If the action 

is considered critical, the 0.2 percent 

annual chance floodplain applies. 

Emphasis on Nature-Based Approaches 

Executive Order 11988, as amended, 

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 § 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 ‘‘naturebased approaches,’’ meaning features 

designed to mimic natural processes 

and provide specific services such as 

reducing flood risk and/or improving 

water quality. FEMA also proposes to 

add a definition of ‘‘natural features’’ 

meaning the characteristics of a 

particular environment that are created 

by physical, geological, biological, and 

chemical processes and exist in 

dynamic equilibrium. 


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77See Office of the Federal Register, Writing 

Resources for Federal Agencies, Regulatory Drafting 

Guide, Definitions found at https:// 

Continued 

The use of natural features and 

nature-based approaches in 

consideration of alternatives within 

floodplains and wetlands is consistent 

with the agency’s priorities to promote 

the use of nonstructural flood protection 

methods, minimize the impact of its 

actions on the floodplain, and restore 

and preserve the natural and beneficial 

values served by floodplains as well as 

preserve and enhance the natural values 

of wetlands. In applying the 8-step 

process to its actions, FEMA has 

integrated factors into its impact 

analysis and minimization measures 

(Step 4 and Step 5) to identify those 

opportunities for beneficial floodplain 

and wetland values, to include natural 

values related factors that prioritize 

water resource values, living resource 

values, and agricultural, aquacultural, 

and forestry resource values. Applying 

natural features or nature-based 

approaches as alternatives furthers the 

goals in 44 CFR part 9 and allows for 

FEMA to further encourage those 

actions that increase the natural and 

beneficial function of the floodplain. 

Section-by-Section Analysis 

A. Authority Citation 

FEMA proposes to revise the 

authorities section to reflect appropriate 

statutory and other authorities 

underlying the regulation. 

B. Section 9.1—Purpose of Part 

FEMA proposes to add references to 

the National Flood Insurance Act of 

1968, the Flood Disaster Protection Act 

of 1973, the National Environmental 

Policy Act of 1969, and other relevant 

statutory authorities, and to add ‘‘as 

amended’’ to reflect amendments made 

to Executive Order 11988. 

C. Section 9.2—Policy 

FEMA proposes to add language to 

paragraph (b) to reflect the policy 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 changing conditions into 

account. FEMA also proposes to 

restructure paragraph (b)(2) by adding 

§§ 9.2(c) and 9.2(d). In § 9.2(c), FEMA 

proposes edits for clarity, while in 

§ 9.2(d), FEMA proposes to reorder the 

agency’s actions to prioritize 

minimizing the impact of floods on 

human health, safety, and welfare in 

this part. 

D. Section 9.3—Severability 

In Section 9.3, FEMA proposes to 

remove the authorities as redundant 

because the authorities are cited at the 

beginning of Part 9. Instead, FEMA 

proposes to include a severability 

section. 

FEMA believes that its authority to 

require an 8-step decision making 

process and incorporate the FFRMS into 

it is well-supported in law and policy 

and should be upheld in any legal 

challenge. However, in the event that 

any portion of the proposed rule is 

declared invalid, FEMA intends that the 

various provisions of 44 CFR part 9 be 

severable. The provisions are not so 

interconnected that the rule’s efficacy 

depends on every one of them 

remaining in place—implementation of 

the different provisions is sufficiently 

distinct that FEMA’s aim of updating 

the 8-step process and incorporating the 

FFRMS would still be furthered by 

maintaining the other provisions. For 

example, if a court were to find 

unlawful FEMA’s inclusion of the 

FFRMS approaches in § 9.7(c), FEMA 

intends to retain the inclusion of 

consideration of nature-based 

approaches in the appropriate steps of 

the 8-step decision making process and 

all other amendments to the 44 CFR part 

9 not affected by the court decision. 

Similarly, if a court were to find 

unlawful FEMA’s chosen approach in 

the proposed policy, FEMA intends to 

retain the regulatory changes 

implementing the FFRMS. 

E. Section 9.4—Definitions 

In Section 9.4, FEMA proposes to add 

terms for ‘‘0.2 Percent Annual Chance 

Flood Elevation,’’ ‘‘0.2 Percent Annual 

Chance Floodplain,’’ ‘‘1 Percent Annual 

Chance Flood Elevation,’’ ‘‘1 Percent 

Annual Chance Floodplain,’’ ‘‘Action 

Subject to the FFRMS,’’ ‘‘Base Flood 

Elevation,’’ ‘‘Federal Flood Risk 

Management Standard (FFRMS),’’ 

‘‘Federal Flood Risk Management 

Standard Floodplain,’’ ‘‘Federally 

Funded Project,’’ ‘‘FEMA Resilience,’’ 

‘‘National Security,’’ ‘‘Nature-Based 

Approaches,’’ ‘‘Natural and Beneficial 

Values of Floodplains and Wetlands,’’ 

‘‘Natural Features,’’ and ‘‘Support of 

Floodplain and Wetland Development.’’ 

FEMA proposes to remove the 

definitions of ‘‘Base Flood,’’ ‘‘Base 

Floodplain,’’ ‘‘Five Hundred Year 

Floodplain,’’ ‘‘Flood Fringe,’’ ‘‘Flood 

Hazard Boundary Map,’’ ‘‘Flood 

Insurance Rate Map,’’ ‘‘Flood Insurance 

Study,’’ ‘‘Mitigation Directorate,’’ 

‘‘Natural Values of Floodplains and 

Wetlands’’, ‘‘New Construction in 

Wetlands,’’ and ‘‘Support.’’ Lastly, 

FEMA proposes to revise the definitions 

of ‘‘Coastal High Hazard Area,’’ ‘‘Critical 

Action,’’ ‘‘Emergency Action,’’ ‘‘Flood,’’ 

‘‘Floodplain,’’ ‘‘Functionally Dependent 

Use,’’ ‘‘Mitigation,’’ ‘‘New 

Construction,’’ ‘‘Orders,’’ ‘‘Practicable,’’ 

‘‘Regulatory Floodway,’’ ‘‘Restore,’’ 

‘‘Structures,’’ ‘‘Substantial 

Improvement,’’ and ‘‘Wetlands.’’ 

0.2 Percent Annual Chance Flood 

Elevation. FEMA proposes to define the 

term ‘‘0.2 percent annual chance flood 

elevation’’ to mean the elevation to 

which floodwater is anticipated to rise 

during the 0.2 percent annual chance 

flood (also known as the 500-year 

flood). FEMA generally 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 probability of flooding in the 

area. FEMA is proposing to update other 

definitions that reference the term ‘‘500- 

year flood’’ and related terms where 

appropriate to ensure an effective longterm transition away from this 

terminology. 

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 (also known as the 500- 

year floodplain). 

1 Percent Annual Chance Flood 

Elevation. FEMA proposes to refer to the 

definition of ‘‘Base Flood Elevation’’ to 

define this term to help transition to this 

terminology going forward and more 

accurately reflect the flood probability 

associated with that elevation. 

1 Percent Annual Chance Floodplain. 

FEMA proposes to define the term ‘‘1 

percent annual chance floodplain’’ to 

mean the area subject to flooding by the 

1 percent annual chance flood (also 

known as the 100-year floodplain or 

base floodplain). This definition would 

describe the minimum area that FEMA 

looks at when it determines whether an 

action will take place in a floodplain 

under this part. 

Action. FEMA proposes to remove the 

word ‘‘action’’ from the definition of 

‘‘Action’’ because including the term 

being defined in the definition creates 

confusion and redundancy.77


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67888 Federal Register / Vol. 88, No. 189 / Monday, October 2, 2023 / Proposed Rules 

www.archives.gov/federal-register/write/legal-docs/

definitions.html#;:∼:text=If%20a%20

term%20is%20used%20only%20once%20or,

term%20being%20defined%20as

%20part%20of%20the%20definition. (last accessed 

July 12, 2023). 

78See ‘‘Flood Risk Products: Using Flood Risk 

Products in Hazard Mitigation Plans,’’ found at 

https://www.fema.gov/sites/default/files/2020-07/ 

fema_using-flood-risk-products_guide.pdf (last 

accessed July 12, 2023). 

Actions Affecting or Affected by 

Floodplains or Wetlands. FEMA 

proposes edits to these definitions 

consistent with formatting 

requirements. 

Action Subject to the FFRMS. FEMA 

proposes to define an action subject to 

the FFRMS as an action where FEMA 

funds are used for new construction, 

substantial improvement, or to address 

substantial damage to a structure or 

facility. This term would define those 

actions subject to the FFRMS listed in 

the Revised Guidelines as a ‘‘Federally 

Funded Project’’ by narrowing the term 

to apply only to actions that use FEMA 

funds for these specific activities. 

Base Flood. FEMA proposes to 

remove the definition of the ‘‘base 

flood’’ as FEMA proposes to incorporate 

it into the definition of ‘‘flood or 

flooding.’’ 

Base Floodplain. FEMA also proposes 

to remove the definition of ‘‘base 

floodplain’’ as FEMA proses to 

incorporate it into the definition of ‘‘1 

percent annual chance floodplain.’’ 

Base Flood Elevation. FEMA proposes 

to define the term ‘‘base flood 

elevation’’ to mean the elevation to 

which floodwater is anticipated to rise 

during the 1 percent annual chance 

flood (also known as the base or 100- 

year flood). The terms ‘‘base flood 

elevation,’’ ‘‘1 percent annual chance 

flood elevation,’’ and ‘‘100-year flood 

elevation’’ are synonymous and are used 

interchangeably. FEMA 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 to protect it 

from the risk of flooding in a 1 percent 

annual chance flood. 

Coastal High Hazard Area. FEMA 

proposes to revise the definition of 

‘‘coastal high hazard area’’ to mean an 

area of flood hazard extending from 

offshore to the inland limit of a primary 

frontal dune along an open coast and 

any other area subject to high velocity 

wave action from storms or seismic 

sources. FEMA is proposing to change 

this definition to more closely reflect 

the term as used in the NFIP and avoid 

the use of specific mapping zones for 

ease of use and reference for 

stakeholders. 

Critical Action. FEMA proposes to 

revise the definition of ‘‘critical action’’ 

to mean any activity for which even a 

slight chance of flooding is too great. 

This revised definition is consistent 

with the definition of this term in the 

Orders and Revised Guidelines the 

agency is implementing with this rule. 

Additionally, FEMA proposes to remove 

the requirement that the minimum 

floodplain of concern for critical actions 

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 utilize 

the floodplain established by part 9. 

FEMA would be required to determine 

whether the project meets the new 

definition of ‘‘action subject to the 

FFRMS’’ in § 9.4. If the project is an 

action subject to the FFRMS, then 

FEMA would establish the floodplain by 

using one of the approaches (which 

require the applicant to consider 

whether an action is a critical action) 

explained in proposed § 9.7(c). If the 

project is not an action subject to the 

FFRMS, 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. FEMA 

further proposes to revise this definition 

with updated formatting. 

Emergency Actions. The current 

definition of ‘‘emergency actions’’ does 

not correctly cite to the appropriate 

sections of statutory authority. FEMA 

proposes to correct citations to the 

Robert T. Stafford Disaster Relief and 

Emergency Assistance Act (Stafford Act) 

and remove FEMA regulations citations. 

Federal Flood Risk Management 

Standard (FFRMS). FEMA proposes to 

add a definition of ‘‘FFRMS,’’ which is 

the Federal flood risk management 

standard to be incorporated into existing 

processes used to implement Executive 

Order 11988, as amended. 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’’ generally consistent with 

the definition in the Order and Revised 

Guidelines being implemented, which is 

the floodplain that is established using 

one of the approaches described in 

proposed § 9.7(c). The four approaches 

detailed in proposed § 9.7(c) include 

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. 

Federally Funded Project. FEMA 

proposes to add a definition of 

‘‘Federally Funded Project’’ to reference 

the definition of ‘‘action subject to the 

FFRMS.’’ FEMA is incorporating this 

definition for consistency with the 

Revised Guidelines. 

Federal Insurance Administration. 

FEMA proposes to remove the 

definition of the ‘‘Federal Insurance 

Administration’’ as it is now included 

in the definition of ‘‘FEMA Resilience.’’ 

FEMA Resilience. FEMA proposes to 

delete the definition of Federal 

Insurance Administration and the 

definition of Mitigation Directorate and 

add the definition of FEMA Resilience 

to reflect the current organizational 

structure within the agency. 

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 ‘‘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. 

Flood or Flooding. FEMA proposes to 

add definitions of the ‘‘0.2 Percent 

Annual Chance Flood,’’ and the ‘‘1 

Percent Annual Chance Flood’’ to the 

definition of flood to incorporate all 

flood definitions in one location. FEMA 

would further clarify the use of the 500- 

year flood as interchangeable with the 

0.2 percent annual chance flood, and 

the base flood or 100-year flood as 

interchangeable with the 1 percent 

annual chance flood. 

Flood Fringe. FEMA proposes to 

eliminate this definition as the term is 

no longer used in the regulatory text. 

Flood Hazard Boundary Map (FHBM). 

FEMA proposes to eliminate this 

definition as the term is no longer used 

in the regulatory text. FEMA offers a 

range of flood risk products under the 

NFIP and categorizes these products as 

‘‘regulatory’’ or ‘‘non-regulatory.’’ 

Regulatory flood risk products are 

created subject to procedural due 

process requirements, contain basic 

flood information, and are used for 

official actions such as identifying 

properties subject to mandatory flood 

insurance purchase requirements, or 

enforcing minimum building standards 

for construction in a floodplain in NFIP 

participating communities.78 Nonregulatory flood risk products are not 

tied to mandatory enforcement or 

compliance requirements for the NFIP 


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79Section 201 of the Flood Disaster Protection 

Act of 1973, 42 U.S.C. 4105 and the National Flood 

Insurance Act of 1968, as amended, 42 U.S.C. 4001 

et seq. Specifically, 42 U.S.C. 4101(a) states that the 

Administrator is authorized to consult with other 

Federal agencies, State or local government 

agencies, or contract to obtain information ‘‘so that 

he may identify and publish information with 

respect to all flood plain areas, including coastal 

areas located in the United States, which has 

special flood hazards. . . .’’ Further, 42 U.S.C. 

4104(a) states ‘‘In establishing projected flood 

elevations for land use purposes with respect to any 

community pursuant to section 4102 of this title, 

the Director shall first propose such determinations 

by publication for comment in the Federal Register 

. . . .’’ 

and expand upon basic flood hazard 

information. References to FEMA’s 

regulatory products under the NFIP, 

such as the Flood Hazard Boundary 

Map, Flood Insurance Rate Map, and 

Flood Insurance Study are being 

eliminated in the proposed regulatory 

text to allow flexibility to encompass 

the full range of NFIP products (both 

regulatory and non-regulatory) available 

for use with the 8-step process. For 

example, the existing section 9.7(c) 

prescribes a sequence of steps to 

obtaining the floodplain, flood 

elevation, and other information 

needed. Current section 9.7(c)(i) only 

includes use of the FIRM, FBFM and 

FIS if they exist whereas 9.7(c)(ii) 

includes options to seek data from other 

sources if the available NFIP maps do 

not provide the necessary information. 

There are cases where a FIRM, FBFM, 

or FIS exist for the location, but do not 

provide the necessary information to 

determine the relevant floodplain and/ 

or elevation. This section is being 

proposed to be rewritten to allow use of 

other data sources whenever the 

information is not available on the NFIP 

maps or when better information is 

available. 

Streamlining the references to 

FEMA’s regulatory products would also 

align the regulatory language with the 

core statutory language that authorizes 

FEMA to publish determinations of 

Special Flood Hazard Areas (SFHAs) 

and flood elevations.79 These 

determinations are published in several 

different products. Rather than itemize 

and attempt to prioritize the different 

products, the proposed text would focus 

instead on whether official 

determinations of the SFHA or flood 

elevations are available. 

Flood Insurance Rate Map (FIRM). 

FEMA proposes to eliminate this 

definition as the term is no longer used 

in the regulatory text. As explained 

above, references to FEMA’s regulatory 

products are being eliminated in the 

proposed regulatory text to allow 

flexibility to encompass the full range of 

NFIP products available for use with the 

8-step process. There are cases where a 

FIRM, FBFM, or FIS exist for the 

location, but do not provide the 

necessary information to determine the 

relevant floodplain and/or elevation. 

This section is being proposed to be 

rewritten to allow use of other data 

sources whenever the information is not 

available on the NFIP maps or when 

better information is available. 

Flood Insurance Study (FIS). FEMA 

proposes to eliminate this definition as 

the term is no longer used in the 

regulatory text. As explained above, 

references to FEMA’s regulatory 

products are being eliminated in the 

proposed regulatory text to allow 

flexibility to encompass the full range of 

NFIP products available for use with the 

8-step process. There are cases where a 

FIRM, FBFM, or FIS exist for the 

location, but do not provide the 

necessary information to determine the 

relevant floodplain and/or elevation. 

This section is being proposed to be 

rewritten to allow use of other data 

sources whenever the information is not 

available on the NFIP maps or when 

better information is available. 

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 mean any land area that is subject to 

flooding to more accurately reflect the 

broad definition of this term. The term 

‘‘floodplain’’ refers to geographic 

features with undefined boundaries and 

the proposed revised regulation will 

establish a specific floodplain through 

the process described in proposed 

§ 9.7(c). 

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 § 9.7(c) when 

making the floodplain determination. 

FEMA must determine whether the 

project meets the new definition of an 

‘‘action subject to the FFRMS’’ in § 9.4. 

If the project is an action subject to the 

FFRMS, 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 an action subject 

to the FFRMS (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 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 an 

action subject to the FFRMS and 

whether it is a critical action. 

Functionally Dependent Use. FEMA 

proposes to remove references to 

examples in this definition to reduce 

confusion around the definition and 

avoid any misinterpretation that the 

term’s usage is limited to the current 

examples. FEMA plans to provide more 

specific, relevant examples in guidance 

to better assist stakeholders with 

particularly nuanced situations. 

Mitigation. FEMA proposes to remove 

the term ‘‘all’’ from the definition of 

mitigation as mitigation would be 

defined more broadly consistent with 

the requirements of the Orders and 

Revised Guidelines being implemented. 

By removing ‘‘all,’’ FEMA would clarify 

that the agency’s goal, consistent with 

current law and Executive Orders 

11988, as amended, and 11990 is to 

minimize the potentially adverse 

impacts of the proposed action to the 

extent possible, including consideration 

of practicality, rather than to take all 

mitigation actions. 

Mitigation Directorate. FEMA 

proposes to remove the definition of the 

‘‘Mitigation Directorate’’ as it is now 

included in the definition of ‘‘FEMA 

Resilience.’’ 

National Security. FEMA proposes to 

add a definition for ‘‘national security’’ 

consistent with the definition used in 

the Revised Guidelines. The proposed 

definition would define national 

security as a condition that is provided 

by either (1) a military or defense 

advantage over any foreign nation or 

group of nations; (2) a favorable foreign 

relations position; or (3) a defense 

posture capable of successfully resisting 

hostile or destructive action from within 

or without, overt or covert. 

Incorporating this definition would help 

stakeholders better understand the 8- 


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67890 Federal Register / Vol. 88, No. 189 / Monday, October 2, 2023 / Proposed Rules 

80See 44 CFR 59.1. 

81 Id. 

step process and the actions to which 

each Step applies. 

Nature-Based Approaches. FEMA 

proposes to add a definition of ‘‘naturebased approaches.’’ Executive Order 

11988, as amended, now contains a 

provision requiring agencies consider 

nature-based approaches, where 

possible, in developing alternatives for 

consideration to meet the purpose of a 

proposed action within a floodplain or 

wetland 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 and 

nature-based solutions 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 Revised Guidelines. 

Natural and Beneficial Values of 

Floodplains and Wetlands. FEMA 

proposes to remove the definition of 

‘‘natural values of floodplains and 

wetlands’’ and add the definition of 

‘‘natural and beneficial values of 

floodplains and wetlands’’ to mean the 

features or resources that provide 

environmental and societal benefits. 

FEMA proposes adding additional 

clarification that water and biological 

resources are often referred to as 

‘‘natural functions of floodplains and 

wetlands’’ and also proposes to 

incorporate additional clarifying 

examples of water resource values, 

living resource values, cultural resource 

values, and cultivated resource values 

for more consistency with the Revised 

Guidelines and Executive Order 11988, 

as amended. 

Natural Features. FEMA proposes to 

add a definition of ‘‘natural features’’ to 

mean characteristics of a particular 

environment that are created by 

physical, geological, biological, and 

chemical processes and exist in 

dynamic equilibrium. Consistent with 

the Revised Guidelines, natural features 

are self-sustaining parts of the landscape 

that require little or no maintenance to 

continue providing their ecosystem 

services (functions). 

New Construction. FEMA proposes to 

remove the parenthetical ‘‘including the 

placement of a mobile home’’ from the 

definition of new construction and 

instead add that ‘‘new construction’’ 

includes permanent installation of 

temporary housing units. This change 

narrows the scope of FFRMS 

applicability to only those temporary 

housing units that FEMA permanently 

installs rather than all placements of 

temporary housing units. The temporary 

nature of initial housing unit 

placements generally does not provide 

an opportunity to improve community 

resilience or floodplain management 

long term, which is the intent of the 

FFRMS. 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. Finally, it would not 

always be feasible to elevate these units 

to the required flood elevation when 

placed for temporary housing. Given 

these concerns, FEMA seeks to apply 

the FFRMS requirements only to those 

temporary housing units that the agency 

permanently installs, becoming 

permanent housing solutions rather 

than all temporary housing units placed 

by the agency. FEMA further proposes 

to delete the current definition of ‘‘new 

construction in wetlands’’ and 

incorporate it into the definition of 

‘‘new construction’’ to reduce confusion 

and eliminate references to specific 

dates that no longer apply to current 

and future actions subject to part 9. The 

application of the FFRMS is required for 

any action which meets the definition of 

an ‘‘action subject to the FFRMS.’’ 

‘‘Action subject to the FFRMS’’ 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 temporary housing unit. As described 

further in the discussion of § 9.13, 

FEMA does not intend to require the 

application of the FFRMS in the 

placement of temporary housing units 

for the purpose of temporary housing. 

Orders. FEMA proposes to revise the 

definition of ‘‘orders’’ to include 

amendments made to Executive Order 

11988. 

Practicable. FEMA proposes to revise 

the definition of ‘‘practicable’’ to update 

the factors considered in the 

practicability analysis for consistency 

with the existing regulatory text and the 

Revised Guidelines, and for clarity. 

Specifically, FEMA proposes to add 

‘‘natural’’ to clarify the environmental 

factor. FEMA also proposes to 

incorporate into the definition of 

‘‘practicable’’ references to social 

concerns, economic aspects, and legal 

constraints. These concepts are 

currently included in the description of 

practicability analysis in § 9.11. As 

discussed below, the ‘‘economic 

aspects’’ refers to, among other things, 

cost and technology factors and to add 

‘‘legal constraints’’ and ‘‘agency 

authorities’’ to specifically reflect 

additional constraints on the agency’s 

ability to act as a factor in the 

practicability analysis. By making these 

changes, FEMA would define 

practicability in a manner that is 

generally consistent with the longstanding regulatory text while 

incorporating updates for additional 

clarity and consistency with the Revised 

Guidelines. 

Regulatory Floodway. FEMA proposes 

to clarify the definition of ‘‘regulatory 

floodway.’’ FEMA proposes to eliminate 

the reference to a specific amount set by 

the NFIP and instead define the term to 

mean the area regulated by Federal, 

State, or local requirements to provide 

for the discharge of the base flood so 

that the cumulative rise in water surface 

is no more than a designated amount 

above the base flood elevation. These 

edits more accurately encompass 

situations where communities have 

adopted more restrictive floodway 

definitions than the minimum specified 

by the NFIP. The changes are intended 

to help stakeholders better understand 

what a regulatory floodway is and how 

it is determined without tying the term 

to a specific amount that can change 

under the NFIP. 

Restore. FEMA proposes to update the 

definition of ‘‘restore’’ to mean to 

reestablish a setting or environment in 

which the natural functions of the 

floodplain can operate. This change 

eliminates the redundancy of requiring 

the floodplain to ‘‘again’’ operate. 

Structures. FEMA proposes to update 

the definition of ‘‘structures’’ to require 

that the buildings be both walled and 

roofed rather than walled or roofed to be 

considered a ‘‘structure,’’ consistent 

with the definition of ‘‘structure’’ in 44 

CFR Subchapter B, Insurance and 

Hazard Mitigation.80 This change is also 

consistent with current FEMA practice 

under the NFIP which designates areas 

that are not both walled and roofed as 

facilities.81 Additionally, FEMA is 

proposing a change from the term 

‘‘mobile homes’’ to ‘‘temporary housing 

units’’ to reflect a range of housing units 

the agency may provide after a disaster 

while also referencing ‘‘manufactured 

housing’’ to ensure that the public 


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82See Individual Assistance Program and Policy 

Guide Version 1.1 found at https://www.fema.gov/ 

assistance/individual/policy-guidance-and-factsheets (last accessed July 12, 2023) pg. 89. 

83See Individual Assistance Program and Policy 

Guide Version 1.1 found at https://www.fema.gov/ 

assistance/individual/policy-guidance-and-factsheets (last accessed July 12, 2023) pg. 89. 

84Section 406 of the Stafford Act involves the 

repair, restoration, and replacement of damaged 

facilities while section 407 relates to debris 

removal. 

85See 45 FR at 59529. 

understand that temporary housing 

units are regulated as manufactured 

housing in the NFIP. 

Substantial Improvement. FEMA 

proposes to update the reference to the 

Stafford Act because the citation is 

outdated in the current definition. 

FEMA also proposes to add a sentence 

stating that substantial improvement 

includes work to address substantial 

damage to a structure or facility. This 

change is for clarity and for consistency 

with part 59. 

Support. FEMA proposes to eliminate 

the definition of ‘‘support’’ and replace 

it with a new definition of ‘‘support of 

floodplain and wetland development’’ 

to further clarify the term and ensure 

consistency of its usage in part 9. 

Support of Floodplain and Wetland 

Development. FEMA proposes to define 

this term to mean to, directly or 

indirectly, encourage, allow, serve, or 

otherwise facilitate development in 

floodplains or wetlands. Development 

means any man-made change to 

improved or unimproved real estate, 

including but not limited to, new 

construction; mining; dredging; filling; 

grading; paving; excavation or drilling 

operations; or storage of equipment or 

materials. Direct support results from 

actions within floodplains or wetlands, 

and indirect support results from 

actions outside of floodplains or 

wetlands. By providing this clarifying 

definition, FEMA would help eliminate 

confusion regarding the use of the term 

‘‘support’’ in the regulatory text and 

ensure that actions taken under part 9 

are done with the intent not to support 

floodplain and wetland development 

consistent with Executive Order 11988, 

as amended, and Executive Order 

11990. 

Wetlands. FEMA proposes minor 

edits for clarity and to delete references 

to the U.S. Fish and Wildlife Service 

publication in the current definition of 

‘‘wetlands’’ as the reference is now out 

of date and rather generally reference 

the definition utilized by that agency for 

consistency in the future. 

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 11988, as amended, 

the FFRMS, and Revised Guidelines, 

would apply to new actions for which 

assistance is made available pursuant to 

declarations under the Stafford Act that 

are commenced on or after the effective 

date of the final rule, and new actions 

for which assistance is made available 

pursuant to notices of funding 

opportunity that publish on or after the 

effective date of the final rule. This is to 

clarify that current part 9, including use 

of the 1 percent annual chance 

floodplain (or 0.2 percent annual chance 

floodplain for critical actions), would 

still apply to actions relating to 

declarations and funding opportunities 

issued prior to the effective date. Only 

new actions would be subject to revised 

part 9 so that the changes would not be 

applied to projects which have already 

been reviewed for compliance with 

Executive Order 11988 and may have 

incurred design expenses to meet the 

current floodplain management 

standards. Any actions associated with 

declarations under the Stafford Act that 

begin on or after the effective date of the 

final rule or any actions for which the 

notice of funding opportunity publishes 

on or after the effective date of the final 

rule would be subject to revised part 9, 

including the changes required under 

Executive Order 11988, as amended, the 

FFRMS, and the Revised Guidelines, 

such as determining the floodplain for 

the action and requiring the use of 

nature-based approaches, where 

possible, to mitigate harm when 

development in the floodplain is not 

avoidable. In paragraph 9.5(b)(1), FEMA 

proposes to add ‘‘as amended’’ to reflect 

amendments to Executive Order 11988. 

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 and reorganize the section for 

clarity and readability. FEMA proposes 

to eliminate current paragraph (c)(3) as 

unemployment assistance would not 

constitute an ‘‘action’’ under this part 

(see § 9.4). FEMA proposes to revise 

current paragraph (c)(6) to clarify that 

actions involving fire management 

assistance that include hazard 

mitigation assistance under sections 404 

and 420(d) of the Stafford Act are 

subject to the 8-step process. Similar to 

the revision to § 9.7(c)(1), FEMA seeks 

to clarify where some actions may still 

be required to complete the 8-step 

process. FEMA also proposes to update 

current paragraph (c)(8) as it refers to a 

defunct title for the Individuals and 

Households Program and includes 

programs that no longer exist and 

restructure the paragraph to reflect 

current categories of assistance under 

this program that are not subject to the 

8-step process. FEMA proposes to 

further update this section by removing 

private bridges from the 8-step process 

consistent with other exceptions to that 

process in the Individual Assistance 

program in current paragraph (c)(8)(i). 

This change aligns with the existing 

exemptions for all other forms of home 

repair and replacement under section 

408 of the Stafford Act. FEMA will only 

provide funding for privately-owned 

access bridges damaged as a result of a 

Presidentially-declared disaster in cases 

where a FEMA inspection determines 

repairs are necessary to provide drivable 

access to a primary residence.82 In 

addition to this requirement, FEMA will 

only provide funding when at least one 

of the following additional conditions 

exist: (1) the bridge provides the only 

access to the property; (2) the home 

cannot be accessed due to damage 

caused to other infrastructure; or (3) the 

safety of the occupants or residence 

would be adversely affected because 

emergency services and equipment 

could not reach the residence.83 As 

these private bridge projects are small in 

scale and subject to local review and 

permitting requirements that otherwise 

consider local floodplain management 

concerns, FEMA believes they are 

unlikely to result in significant impacts 

to the floodplain and requiring the 8- 

step process for these projects would 

not necessarily result in improved 

community resiliency, a key goal of the 

FFRMS. FEMA, however, seeks 

comment on whether removing private 

bridge projects from the 8-step process 

would adversely impact the floodplain. 

FEMA also proposes to revise current 

§ 9.5(c)(12) to further provide that debris 

clearance and removal under section 

502 of the Stafford Act is not subject to 

the 8-step process. FEMA is also 

proposing to add a citation to section 

407 of the Stafford Act to accompany 

the reference to non-emergency disposal 

of debris in this same provision. In 

current paragraph (c)(13), FEMA 

proposes to make revisions to update 

the current monetary thresholds from 

$5,000 to $18,000 for actions under 

sections 406 and 407 of the Stafford 

Act.84 This change would reflect the 

current value of the existing threshold 

dollar amount, which was set in 1980.85

Additionally, FEMA proposes language 

to require adjustment of the threshold 

based on the Consumer Price Index for 

All Urban Consumers published by the 


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86The U.S. Department of Labor publishes the 

Consumer Price Index for All Urban Consumers at 

https://www.bls.gov/cpi/. A calculation to 

determine the impact of CPI–U increases can be 

made at https://www.bls.gov/data/inflation_

calculator.htm. 

87The current outdated regulatory text refers to 

section 419 of the Stafford Act in identifying what 

constituted a small project grant under PA. As a 

result of updates to the Stafford act, section 419 can 

now be found in section 422 (42 U.S.C. 5189) which 

sets forth the authority to create a small project 

threshold that applies to emergency work (sections 

403 or 502), debris removal (section 407) and 

permanent work (section 406) which is all funded 

under the PA program. 

Department of Labor.86 This proposed 

language provides for future changes to 

the applicability of the 8-step process 

based on inflationary increases in the 

cost of actions and helps ensure 

equitable, cost-effective outcomes by 

limiting this process to actions of a 

higher dollar amount. Note FEMA is 

also proposing to add the Stafford Act 

sections 406 and 407 for repairs or 

replacements to § 9.5(c). FEMA’s current 

and proposed dollar value thresholds to 

determine the applicability of the 8-step 

decision-making process to certain 

FEMA actions are updated below as 

follows: 

TABLE 4—FEMA’S CURRENT AND PROPOSED DOLLAR VALUE THRESHOLD TO DETERMINE THE APPLICABILITY OF THE 8- 

STEP DECISION-MAKING PROCESS

Current threshold Proposed threshold 

Exempt from the 8-step decision making process .................................. Projects under $5,000 ................... Projects under $18,000. 

Minimal 8-step decision making process (subject to steps 1, 4, 5, and 

8).

Projects between $5,000 and 

$25,000.

Projects between $18,000 and 

$91,000. 

Abbreviated 8-step decision making process (subject to steps 1, 2, 4, 

5, and 8).

Projects above $25,000 and up to 

$100,000.

Projects above $91,000 and up to 

$364,000. 

Full 8-step decision making process ....................................................... Projects above $100,000 ............... Projects above $364,000. 

FEMA proposes to relocate current 

paragraph (g) and redesignate it as 

paragraph (d), restructuring current 

paragraphs (d)–(f) to (e)–(g) respectively. 

FEMA believes this restructuring will 

make the section more readable and 

easier for stakeholders to understand. 

FEMA is also proposing to revise the 

structure and language in current 

paragraphs (d) and (g) to better explain 

the exceptions to the full 8-step process 

detailed in each paragraph. FEMA 

proposes to update the current monetary 

thresholds set in current paragraphs (d) 

and (g) similar to changes proposed to 

current paragraph 9.5(c)(13), described 

above, to reflect the current value of 

these dollar amounts and also require 

future changes to these amounts based 

on the Consumer Price Index for All 

Urban Consumers as published by the 

Department of Labor. As explained 

above, FEMA believes these edits would 

result in limiting applicability of the 8- 

step process appropriately based on 

inflationary increases in the cost of 

actions. FEMA is proposing the increase 

and future updates as smaller projects 

offer little, if any, opportunity for 

mitigation and the agency believes 

floodplain management resources are 

best devoted in areas where they will be 

most effective. By keeping actions under 

a certain amount either exempt or with 

a more streamlined/expedited 

floodplain management process, FEMA 

would maintain the intent of the 

Executive Orders to protect floodplains 

and wetlands while also ensuring 

appropriately streamlined, costeffective, and equitable assistance to 

communities with smaller projects. 

FEMA is proposing to revise current 

paragraph (g)(2) to address actions 

subject to the FFRMS by changing the 

current text, which refers to new or 

substantially improved structures or 

facilities, to instead refer to new 

construction, substantial improvement, 

or repairs to address substantial damage 

of structures or facilities. FEMA is also 

proposing to revise current paragraph 

(g)(3) to include facilities or structures 

on which a flood insurance claim has 

been paid. This addition would provide 

consistency with language existing in 

current paragraph (d)(4)(iii) and ensure 

that facilities or structures which have 

previously sustained damage from 

flooding on which a flood insurance 

claim has been paid will be subject to 

the full 8-step process. As FEMA has 

already provided funding to recover 

from prior flood damage on these 

facilities and structures, the agency 

believes the full 8-step process is 

required to ensure any additional funds 

provided increase resilience against 

flooding. 

FEMA proposes to delete current 

paragraph (d)(1), consistent with the 

proposed change above to exempt 

private bridges from the 8-step process 

entirely. FEMA also proposes to delete 

current paragraph (d)(2). The current 

regulatory language allows for an 

abbreviated 8-step process for small 

project grants under the PA program 87

unless those projects fell into certain 

categories. FEMA proposes to remove 

this language because it is no longer 

applicable; FEMA stopped applying the 

abbreviated 8-step process to the small 

project threshold under the PA program 

after it increased beyond the $100,000 

threshold set in current paragraph 

9.5(d)(4)(i). FEMA also proposes minor 

revisions to current paragraph (d)(4)(iii) 

(proposed (e)(2)(iii)) for clarity and 

readability. 

In current paragraph (e), FEMA 

proposes to update the responsible 

official from Director to Regional 

Administrator as this authority has been 

delegated to Regional Administrators 

and make other clarifying edits to reflect 

current agency terminology in that 

paragraph as well as current paragraphs 

(f)(1) and (f)(2). FEMA also proposes 

clarifying edits in current § 9.5(f)(1) for 

readability and to eliminate the prime 

two example references. As explained 

above in the definitions, FEMA believes 

that these types of specific examples are 

best addressed in guidance that can 

evolve as issues arise and better assist 

stakeholders with particularly nuanced 

situations. Further, these specific 

examples relate to regulatory provisions 

(current §§ 9.9(e)(6) and 9.11(e)) that 

FEMA proposes to remove from this 

rule. 

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, as amended, and 11990 to its 

actions. FEMA proposes a clarifying edit 

to § 9.6(a) that would delete 

redundancy. Paragraph (b) of § 9.6 lays 

out the 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 


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88See generally Coastal Resilience Assessment 

(Suriname), December 2017 published by the World 

Bank at https://naturebasedsolutions.org/ 

knowledge-hub/63-coastal-resilience-assessmentsuriname (last accessed June 8, 2022); 

Environmental and Energy Study Institute Fact 

Sheet ‘‘Nature as Resilient Infrastructure: An 

Overview of Nature-Based Solutions’’ at https://

www.eesi.org/files/FactSheet_Nature_Based_

Solutions_1016.pdf#:∼:text=These%20nature-based

%20solutions%20are%20often%20higherquality%2C%20lower-cost%2C%20more,

avenue%20for%20rethinking%20and

%20remodeling%20our%20nations%20

infrastructure (last accessed July 12, 2023); and 

Andrea Bassi, Emma Cutler, Ronja Bechauf, and 

Liesbeth Casier, ‘‘How Can Investment in Nature 

Close the Infrastructure Gap?’’ at https://

www.iisd.org/publications/investment-in-natureclose-infrastructure-gap (last accessed July 12, 

2023). 

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’’ and refer the reader to 

§ 9.7, which describes (1) the flexible 

framework that FEMA would apply to 

actions subject to the FFRMS, as well as 

(2) the historical framework that FEMA 

would continue to apply to actions that 

do not qualify as actions subject to the 

FFRMS. Additionally, in Step 3, FEMA 

proposes to add references to natural 

features and nature-based approaches 

consistent with the Revised Guidelines 

to ensure that natural features and 

nature-based approaches are fully 

considered when identifying and 

evaluating practicable alternatives to 

locating the action in a floodplain or 

wetland. As changing conditions elevate 

the threats posed by natural hazards, 

FEMA is proposing to incorporate 

nature-based solutions to help bolster 

resilience. Nature-based solutions are 

sustainable planning, design, 

environmental management, and 

engineering practices that weave natural 

features or processes into the built 

environment to promote adaptation and 

resilience. These solutions use natural 

features and processes to combat 

changing conditions, reduce flood risk, 

improve water quality, protect coastal 

property, restore, and protect wetlands, 

stabilize shorelines, reduce urban heat, 

and add recreational space. Naturebased solutions offer significant 

monetary and non-monetary benefits 

and often come at a lower cost than 

traditional infrastructure.88

Requiring the use of natural features 

and nature-based approaches, where 

possible, in consideration of alternatives 

within or affecting floodplains and 

wetlands is consistent with the agency’s 

priorities to promote the use of 

nonstructural flood protection methods, 

minimize the impact of its actions on 

the floodplain, and restore and preserve 

the natural and beneficial values served 

by floodplains as well as preserve and 

enhance the natural values of wetlands 

(44 CFR 9.2). In applying the 8-step 

process to its actions, FEMA has 

integrated factors into its impact 

analysis and minimization measures 

(Step 4 and Step 5; 44 CFR 9.10 and 

9.11) to identify those opportunities for 

beneficial floodplain and wetland 

values, to include natural values related 

factors (44 CFR 9.10(d)(2)) that prioritize 

water resource values, living resource 

values, and agricultural, aquacultural, 

and forestry resource values. Requiring 

natural features or nature-based 

solutions as alternatives, where 

possible, furthers the goals in 44 CFR 

part 9 and allows for FEMA to further 

encourage those actions that increase 

the natural and beneficial function of 

the floodplain. 

FEMA also proposes revisions to Step 

5 to clarify that the agency must 

minimize potential adverse impacts 

within floodplains and wetlands under 

Step 4, including minimizing the 

potential direct and indirect support of 

floodplain and wetland development 

identified under Step 4. While not a 

new requirement, revising this language 

would help clarify that direct or indirect 

support of floodplain or wetland 

development is an adverse impact the 

agency must consider as part of 

minimization. FEMA believes these 

edits would help ensure consistency of 

use throughout part 9 and reduce 

stakeholder confusion. Finally, FEMA 

proposes a minor edit for readability in 

Step 6 (removing the word ‘‘the’’ in the 

phrase, ‘‘the hazards to others’’). 

H. Section 9.7—Determination of 

Proposed Action’s Location 

Current § 9.7 establishes FEMA’s 

procedures for determining whether any 

action as proposed is located in or 

affects a floodplain or a wetland. FEMA 

is proposing to revise this section to add 

procedures for identifying the FFRMS 

floodplain and corresponding elevation. 

FEMA is also proposing to revise this 

section’s paragraph structure for clarity. 

In current and proposed paragraph 

(a), FEMA proposes minor conforming 

edits. As in § 9.6, FEMA proposes to 

simply refer to ‘‘floodplain’’ rather than 

the current regulatory text’s ‘‘base 

floodplain’’ or ‘‘500-year floodplain’’ 

references and direct the reader to 

paragraph (c), because the Revised 

Guidelines and the FFRMS’s flexible 

framework for 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). 

FEMA proposes to reorganize current 

paragraph (b) for clarity. In proposed 

paragraph (b)(1), FEMA proposes to 

replace a reference to ‘‘the Orders’’ with 

a reference to ‘‘this part,’’ for clarity. In 

proposed paragraph (b)(1)(i), FEMA 

proposes to add the words ‘‘Federal 

action’’ to make clear that the goal is to 

avoid Federal action, specifically, in a 

floodplain or wetland location unless 

they are the only practicable alternatives 

consistent with the agency’s 

requirements under part 9. This 

proposed change would reiterate that 

the focus of the 8-step process is on 

Federal actions. 

FEMA is also proposing to relocate to 

§ 9.7(c) the statement that in the absence 

of a finding to the contrary, FEMA may 

assume that a proposed action involving 

a facility or structure that has been 

flooded is in the floodplain. FEMA 

proposes this change for clarity. In 

addition, Paragraph (b) of § 9.7 currently 

states that information about the 1 

percent annual chance (100-year) and 

0.2 percent annual chance (500-year) 

floods may be needed to comply with 

the regulations in part 9. In proposed 

paragraph (b)(2), FEMA proposes to 

update this statement for simplicity, 

referencing the floodplain 

determination process in § 9.7(c) in 

revised paragraph (b)(2) instead of 

referencing the 100-year and 500-year 

floods. 

Current paragraph (b) includes a list 

of ‘‘flooding characteristics’’ that the 

Regional Administer ‘‘shall’’ identify, 

‘‘as appropriate.’’ For clarity, FEMA 

proposes in new paragraph (b)(3) that 

the Regional Administrator ‘‘may’’ 

identify ‘‘current and future’’ flooding 

characteristics, ‘‘as applicable.’’ These 

proposed changes are consistent with 

the Revised Guidelines. FEMA prefers 

to avoid the use of the term ‘‘shall,’’ 

which suggests a mandatory 

requirement for the Regional 

Administrator to identify all of the 

additional flooding characteristics 

listed. FEMA’s current practices do not 

require this level of rigidity and FEMA 

proposes the identification of these 

characteristics to be within the 

discretion of the Regional 

Administrator. FEMA is also proposing 

to add language for the agency to 

consider both current and/or future 

flooding characteristics by adding 

‘‘current and future’’ to the additional 

flooding characteristics that may be 

considered. This addition clarifies the 

Regional Administrator’s discretion to 

consider both current and future 

flooding characteristics consistent with 

the goals of FFRMS to improve the 

resilience of communities and Federal 

assets against the impacts of flooding 


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89Although the FFRMS describes various 

approaches for determining the higher vertical flood 

elevation and corresponding horizontal floodplain 

for Federally funded projects, it is not meant to be 

an ‘‘elevation’’ standard. The FFRMS is a resilience 

standard. The vertical flood elevation and 

corresponding horizontal floodplain determined 

using the approaches in the FFRMS establish the 

level to which a structure or facility must be 

resilient. This may include using structural or nonstructural methods to reduce or prevent damage; 

elevating a structure; or, where appropriate, 

designing it to adapt to, withstand, and rapidly 

recover from a flood event. See Revised Guidelines 

at 4. 

90Under proposed § 9.7(c)(2), FEMA would retain 

discretion to apply the FFRMS to other actions as 

appropriate. For instance, under the accompanying 

proposed policy, FEMA would require that all 

structure elevation, mitigation reconstruction, and 

dry floodproofing actions under FEMA’s Hazard 

Mitigation Assistance programs comply with the 

proposed FFRMS policy. 

which are anticipated to increase over 

time. Further, FEMA proposes to add to 

the list of flooding characteristics a new 

item for ‘‘[a]ny other applicable flooding 

characteristics’’ to signal flexibility as 

flood risks are further studied and 

developed and allow for local 

jurisdictions to utilize their own 

information to support requirements 

specific to their community’s needs. 

Paragraph (c) of § 9.7 outlines the 

process for determining if the proposed 

action is in the floodplain. As explained 

above, FEMA proposes to move 

language regarding previously flooded 

facilities and structures from the current 

paragraph (b) to proposed paragraph (c). 

FEMA also proposes to add the word 

‘‘previously’’ to this provision for 

clarity. By moving this language to 

paragraph (c), FEMA would group this 

provision with the other floodplain 

determination provisions. If a proposed 

action does not involve a previously 

flooded facility or structure, FEMA 

would then begin the process set forth 

in the rest of paragraph (c) to determine 

whether the proposed action is in the 

floodplain. FEMA would determine 

whether the action is an action subject 

to the FFRMS as defined in § 9.4. If the 

action is an action subject to the 

FFRMS, FEMA would establish the 

floodplain and corresponding flood 

elevation 89 using one of the four 

approaches outlined in proposed 

paragraph (c)(1). For example, FEMA 

would likely be required to apply one of 

those four approaches to establish the 

FFRMS floodplain to projects involving 

new construction or substantial 

improvement or addressing substantial 

damage to a structure or facility. 

However, FEMA-funded projects that do 

not rise to the level of new construction 

or substantial improvement and do not 

address substantial damage to a 

structure or facility would not be 

required to apply any of the four 

approaches to establish the FFRMS 

floodplain.90

FEMA proposes to implement the 

FFRMS by adopting the flexible 

framework identified in Executive Order 

11988, as amended by 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 generally 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, while also 

considering the availability of 

actionable data, costs, and equity. 

Consistent with Executive Order 

11988 as amended by Executive Order 

13690 and the Revised Guidelines, 

proposed § 9.7(c)(1)(iii) would allow 

FEMA to except from the FFRMS an 

action that is in the interest of national 

security, an emergency action, or a 

mission-critical requirement related to a 

national security interest or an 

emergency action. For example, if 

FEMA proposed to construct an 

underground bunker at one of its 

locations for national security reasons, 

to require the bunker to be elevated 

pursuant to the FFRMS could run 

contrary to the purpose of the bunker. 

It is important to note that an exception 

to using the floodplain for actions 

subject to the FFRMS under any of the 

reasons listed in this section does not 

exempt the action from the 

requirements of part 9 and Executive 

Order 11988 altogether. Instead, if one 

of FEMA’s actions were excepted under 

this provision, FEMA would still be 

required to apply the appropriate 

floodplain established by proposed 

§ 9.7(c)(3). FEMA does have the 

authority to exempt certain actions from 

any application of the requirements of 

Part 9 and Executive Order 11988, as 

amended, and those actions which are 

exempted are described in current 

§§ 9.5(c) and (e). 

In proposed § 9.7(c)(2), consistent 

with existing requirements, FEMA 

proposes that if FEMA determines that 

the action is not an action subject to 

FFRMS, the proposed action would be 

evaluated using, at a minimum, the 1 

percent annual chance floodplain for 

non-critical actions and, at a minimum, 

the 0.2 percent annual chance 

floodplain for critical actions. 

In proposed § 9.7(c)(3), FEMA 

proposes to focus the analysis to 

establish the floodplain and 

corresponding elevation using the best 

available data and proposes that the 

floodplain and corresponding elevation 

determined using best available data 

must be at least as restrictive as FEMA’s 

regulatory determinations under the 

National Flood Insurance Program. 

Current § 9.7(c)(1) requires FEMA to 

first consult the FIRM, FBFM, and FIS 

which ends the analysis if those 

‘‘detailed’’ products are available. There 

are cases where FIRM, FBFM, and FIS 

are available for an area but do not 

provide flood elevations, 0.2 percent 

annual chance floodplain information, 

or other floodplain information 

required. The proposed changes allow 

FEMA to seek additional information 

even when a ‘‘detailed’’ product is 

available at a location. If those 

‘‘detailed’’ products are not available, 

FEMA will then consult the FHBM. If 

that information is insufficient FEMA 

will seek other data as part of the 

floodplain and elevation analysis. 

FEMA proposes to update this 

paragraph to reflect the Revised 

Guidelines’ focus on the use of the best 

available information. While FEMA still 

intends to rely on FEMA products such 

as FIRMs, FBFMs, FISs, and FHBMs, 

FEMA understands that these products 

do not always provide all information 

needed for some locations and do not 

currently account for future conditions 

and other factors that better inform the 

floodplain determination for projects 

under part 9. In obtaining the best 

available information, FEMA is 

proposing to consider other information 

from FEMA, as well as information in a 

proposed updated list of sources to 

reflect those sources suggested in the 

Revised Guidelines, as well as sources 

the agency knows may have relevant 

additional information. Some of the 

proposed changes to this list are updates 

to reflect current titles, while other 

changes reflect newly available 

resources. Finally, if none of these 

sources have the information necessary 

to comply with part 9, the Regional 

Administrator may seek the services of 

a professional registered engineer. 

FEMA proposes clarifying edits in 

paragraph (d)(3) and (d)(4) of § 9.7. 

I. Section 9.8—Public Notice 

Requirements 

FEMA proposes clarifying edits in 

§ 9.8(a) and § 9.8(c)(1)–(c)(4) for 

readability. FEMA is adding the use of 

the internet for notice in this process by 

inserting § 9.8(c)(4)(i) to allow for notice 

through the internet or another 

comparable method. This proposed 

change would codify FEMA’s current 

practice to incorporate notices on the 

agency’s website at www.fema.gov in 

connection with specific disaster relief 


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efforts. Currently, notices regarding 

other FEMA programs may be posted on 

other websites, such as websites 

belonging to state or local governments, 

but these notices are not currently 

posted on www.fema.gov if not tied to 

a specific disaster. This revision would 

allow FEMA to further expand the use 

of www.fema.gov for notices for other 

programs not tied to a specific disaster. 

By incorporating the use of the internet 

through FEMA’s website and other sites 

as a means to provide notice, FEMA is 

seeking to modernize this part for 

consistency with current practice and to 

increase public visibility and 

accessibility of those notices that are not 

current posted on www.fema.gov. FEMA 

proposes other edits to the notification 

process in paragraph (c)(4) to eliminate 

outdated terminology and incorporate 

newsletters into the ‘‘other local media’’ 

category as a means of providing notice 

to potentially interested persons. In 

addition to incorporating the use of the 

internet for notice, FEMA proposes to 

clarify in § 9.8(d)(5)(ii) that FEMA may 

include in the notice a link to access a 

map of the area of the proposed action. 

A link may help the public more easily 

access information associated with the 

notice. FEMA also proposes to correct a 

typographical error. FEMA proposes 

other clarifying edits in § 9.8(c)(5)(i)–(iv) 

for readability. 

J. Section 9.9—Analysis and 

Reevaluation of Practicable Alternatives 

FEMA proposes clarifying edits in 

§ 9.9(a) for readability. In § 9.9(b)(2), 

FEMA proposes to add the requirement 

to use natural systems, ecosystem 

processes, and nature-based approaches, 

where possible, in the development of 

alternatives to the proposed actions in 

or affecting the floodplain and/or 

wetland. Under § 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 an alternative using natural 

systems, ecosystem processes, and 

nature-based approaches might have 

less of an effect on the floodplain. 

For consistency with the Revised 

Guidelines and the agency’s use of the 

term in the current regulations, FEMA is 

proposing to add the cost of technology 

to the list of economic factors that 

FEMA considers under § 9.9(c)(3). By 

adding technology to this list, FEMA 

would clarify that the cost of technology 

is a factor to consider in determining 

practicability of alternatives and also 

emphasize the importance of the cost of 

technology and technological 

advancements in the analysis. FEMA is 

proposing to add § 9.9(c)(5) to reflect 

consideration of agency authorities in 

the practicability analysis, again for 

consistency with the Revised 

Guidelines. Additionally, FEMA is 

proposing clarifying edits throughout 

paragraph 9.9(c) for readability. 

FEMA proposes to remove paragraph 

(d)(2) of § 9.9, which prohibits FEMA 

from locating a proposed critical action 

in the 500-year floodplain, as the 

language is redundant given the 

proposed changes to paragraph (d)(1) 

which explain that FEMA would utilize 

§ 9.7(c) when making the floodplain 

determination. As noted above, FEMA 

would determine whether the project 

meets the new definition of an ‘‘Action 

subject to the FFRMS’’ in proposed 

§ 9.4. If FEMA determined that the 

project is an action subject to the 

FFRMS, then FEMA would establish the 

floodplain by using one of the 

approaches detailed in proposed 

§ 9.7(c)(1) (which requires the applicant 

to consider whether an action is a 

critical action). If FEMA determined 

that the project is not an action subject 

to the FFRMS, 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, at a minimum, for 

critical actions as explained in proposed 

§ 9.7(c)(2). 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 § 9.7(c), eliminate current 

paragraph (d)(2) as it is redundant, and 

redesignate current paragraph (d)(3) as 

new paragraph (d)(2). 

FEMA proposes clarifying edits in 

paragraphs (e)(1)(i), (e)(1)(iii), and 

(e)(1)(iv) for readability and to eliminate 

specific references to the Orders in 

paragraphs (e)(3) and (e)(4). FEMA 

proposes to eliminate paragraph (e)(6). 

Paragraph (e)(6) of § 9.9 prohibits FEMA 

Resilience 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 § 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 implement this 

provision and does not intend to do so 

now; therefore, FEMA is proposing to 

remove it from the regulation. 

K. Section 9.10—Identify Impacts of 

Proposed Actions 

FEMA proposes minor clarifying edits 

in paragraphs (a), (b), and (d) for 

readability and seeks to remove the 

reference to contacting regional offices 

of U.S. Fish and Wildlife Service from 

section 9.10(c) as this process will be 

further detailed in guidance. FEMA also 

proposes edits to paragraph 9.10(d)(2) 

for consistency with edits made in 

section 9.4 defining the natural and 

beneficial values of floodplains and 

wetlands. 

L. Section 9.11—Mitigation 

FEMA proposes minor clarifying edits 

in paragraph (a). In paragraph (c)(1), 

FEMA proposes to clarify that the 

minimization provisions require the 

agency to minimize potential harm to 

lives and the investment at risk from 

flooding based on flood elevations 

established by § 9.7(c). This change first 

helps further explain that the potential 

harm to be minimized must be from 

flooding and that the potential harm is 

based on flood elevations established by 

§ 9.7(c). This proposed revision removes 

the reference to the base flood and the 

500-year flood from paragraph 9.11(c) 

and instead references the floodplain as 

established in § 9.7(c) consistent with 

other changes in the regulation to reflect 

the revised process described in § 9.7 

when making the floodplain 

determination. 

In paragraph (d), FEMA proposes to 

revise the text to reflect that the 

minimization standards are applicable 

to all of FEMA’s grant programs. 

Currently, § 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 (d)(2) and (d)(3)(i), 

FEMA proposes to specifically require 

elevation of the lowest floor of a 

structure to the floodplain established 

under § 9.7(c) during the construction of 

new or substantially improved 

structures. As described above, FEMA 

must follow the revised process 

described in § 9.7 when making the 

floodplain determination. FEMA must 

determine whether the project meets the 

new definition of an ‘‘action subject to 

the FFRMS’’ in § 9.4. The definition of 

‘‘action subject to the FFRMS’’ is an 

action where FEMA funds are used for 

new construction, substantial 

improvement, or to address substantial 

damage to a structure or facility. 


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91A catalogue of FEMA Building Science Branch 

publications, including descriptions of available 

publications for natural hazards can be accessed at 

http://www.fema.gov/emergency-managers/riskmanagement/building-science/publications (last 

accessed July 12, 2023). 

92 44 CFR 60.3. 

93See 42 U.S.C. 4102(c). 

94See 45 FR 59520, 59525 (Sept. 9, 1980). 

95See 85 FR 31202 (May 22, 2020) and https:// 

nfipservices.floodsmart.gov/sites/default/files/w19014%20.pdf (last accessed July 2023). 

96Temporary Housing Unit is defined as ‘‘[a] 

house, apartment, cooperative, condominium, 

manufactured home, or other dwelling acquired by 

FEMA and made available to eligible applicants for 

a limited period of time.’’ See https://

www.fema.gov/sites/default/files/documents/fema_

iappg-1.1.pdf (last accessed July 28, 2023). 

‘‘Substantial Improvement’’ as defined 

in § 9.4 includes all actions taken to 

address substantial damage to a 

structure or facility. Because paragraphs 

(d)(2) and (d)(3)(i) 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) as 

detailed in § 9.7(c). FEMA is proposing 

to remove current § 9.11(d)(3)(ii) as it 

becomes redundant with changes 

proposed to § 9.11(d)(3)(i) and 

redesignate current § 9.11(d)(3)(iii) as 

new § 9.11(d)(3)(ii). FEMA guidance can 

be consulted for technical information 

on elevation methods for new 

construction and the retrofitting of 

existing structures with various types of 

foundations.91 FEMA proposes to revise 

current paragraph (d)(3)(iii) to eliminate 

references to the 100-year or 500-year 

level consistent with other proposed 

changes in the regulation to avoid 

confusion around the use of these terms 

given the revised process for the 

floodplain analysis set forth in proposed 

§ 9.7(c). FEMA is also proposing 

clarifying edits in current paragraph 

(d)(3)(iv) consistent with proposed 

changes to § 9.4 definitions by changing 

‘‘Federal Insurance Administration’’ to 

reflect organizational changes to ‘‘FEMA 

Resilience’’ and other technical citation 

edits as well as replacing ‘‘FIRM’’ with 

‘‘FEMA regulatory product’’ consistent 

with other proposed changes. 

In paragraph (d)(4), FEMA proposes 

minor clarifying edits and to add 

clarifying terminology consistent with 

changes proposed to § 9.4 definitions of 

the base flood and base floodplain. 

FEMA also proposes to provide that 

encroachments or other development 

within a floodway that would result in 

an increase in flood elevation, rather 

than in flood levels, are prohibited. 

FEMA also proposes two further 

changes to help better address the 

concern of flood elevation increase 

because of such development. As 

revised, paragraph (d)(4) would provide 

that the increase in elevation must not 

be more than the amount designated by 

the NFIP or, as indicated later in this 

paragraph, the community, whichever is 

most restrictive. The current designated 

height of the elevation is no more than 

one foot at any point, which effectively 

restates the existing minimum standard 

under the NFIP.92 FEMA’s proposed 

changes would remove reference to a 

one-foot standard, because this 

minimum standard is subject to change 

under the NFIP.93 Further, FEMA’s 

proposed changes would provide that 

the appropriate elevation is set by either 

the NFIP or the community, whichever 

results in the more restrictive standard. 

FEMA proposes to update 

terminology from ‘‘disaster proofing’’ to 

‘‘flood proofing and/or elevation’’ for 

clarity in paragraph (d)(9). For the same 

reasons as stated above for §§ 9.11(d)(2) 

and (d)(3)(i), in paragraph (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 (d)(9) and instead reference 

the floodplain as established in § 9.7(c) 

when describing the requirements for 

the replacement of building contents, 

material and equipment. 

FEMA proposes to remove § 9.11(e) as 

the section’s requirements are no longer 

required. At the time § 9.11(e) was 

promulgated, FEMA had discrepancies 

in coastal studies data that resulted in 

an underrepresentation of flood risk in 

some areas and this paragraph was 

meant to address the issues associated 

with those data discrepancies.94 Since 

1981, FEMA has updated the FIRMs for 

all coastal high hazard areas to address 

the earlier data issues and the program 

no longer maintains these special 

procedures for insurance or floodplain 

improvements. The V Zone Risk Factor 

Rating Form was discontinued by the 

agency on October 16, 2019, based on a 

lack of use 95 and, given the 

effectiveness of FEMA’s updated data 

resolving the initial discrepancies, 

resulted in little to no impact on an 

individual’s actual flood insurance 

premium. Given the updated data 

available and FEMA’s reliance on the 

best available information to determine 

the floodplain in § 9.7(c), this paragraph 

is no longer relevant. Additionally, the 

provision found in paragraph (e)(4) 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 proposes to 

remove it from the regulation, and 

redesignate paragraph (f) as paragraph 

(e). 

M. Section 9.12—Final Public Notice 

FEMA proposes a minor edit to 

paragraph (d)(6) to update language to 

reflect current program terminology. 

Specifically, FEMA proposes to change 

the term ‘‘Damage Survey Report’’ to 

‘‘project application’’ to reflect the 

current document utilized by FEMA’s 

grant programs. 

N. Section 9.13—Particular Types of 

Temporary Housing 

FEMA proposes to revise this section 

to clarify that this part applies to certain 

specified types of temporary housing at 

private, commercial, and group site. 

Currently, this section only applies to 

private and commercial sites. FEMA is 

proposing to incorporate group sites 

into this section so that all of the 

temporary housing requirements under 

this part will fall within the same 

section, promoting ease of use and 

consistency in the application of the 

relevant steps of the 8-step process to 

each type of temporary housing site. 

Group sites are generally a more 

intensive action for the agency, as they 

involve the development of a new site 

on which to place housing and these 

actions are currently subject to the 

normal 8-step process required for most 

FEMA actions under current § 9.13(b) 

and (c)(2). However, FEMA’s experience 

with group sites has demonstrated the 

importance of applying the 

considerations of Steps 3 (practicable 

alternatives) and 5 (minimization) to 

group sites as outlined in proposed 

§ 9.13, rather than the full 8-step 

process. Group sites share the same 

need for expedited review as private 

and commercial sites given the urgent 

need for shelter after a disaster and the 

same consideration of other factors such 

as cost effectiveness, potential flood risk 

to a temporary housing occupant in a 

temporary housing situation, and a 

location close enough to the occupant’s 

former residence to make it possible for 

the occupant to recover quickly. Given 

these same considerations, FEMA is 

proposing to add group sites to coverage 

under this section. See proposed 

§§ 9.13(a) and (b). 

Throughout this section, FEMA 

proposes to update the terminology 

from ‘‘mobile home’’ to ‘‘temporary 

housing unit’’ 96 and to eliminate 

references to ‘‘other readily fabricated 

dwellings’’ that are redundant as a 

result of the change to clarify the types 


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97Tiny homes are typically between 100 and 400 

square feet and rarely exceed 500 feet. See https:// 

www.realtor.com/advice/buy/what-is-a-tiny-house/ 

(last accessed July 12, 2023). 98 44 CFR 60.3. 

99By contrast, temporary housing units 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 § 9.13(c)(5)(ii). 

100 44 CFR 206.118(a)(1)(i) and (iii) requires, as a 

condition of sale, the applicant to agree to purchase 

flood insurance on the unit (if it is or will be in 

a special flood hazard area) and have a site that 

complies with 44 CFR part 9. The NFIP requires 

communities to elevate manufactured housing units 

to or above the base flood elevation. See 44 CFR 

60.3(c)(6)(iv) and 44 CFR 60.3(c)(12)(i). 

101See 44 CFR 206.118(a)(1)(i). 

of temporary housing units covered 

under this section. The statutes and 

regulations associated with the 

Individual Assistance Program use the 

term ‘‘temporary housing unit.’’ FEMA 

believes this proposed change will help 

eliminate confusion. Examples of 

temporary housing units include a 

readily fabricated dwelling such as 

recreational vehicles, manufactured 

housing units, travel trailers, yurts, and 

tiny houses.97

In proposed § 9.13(c)(1), FEMA 

proposes to specifically designate the 

use of the 1 percent annual chance 

(base) floodplain when evaluating 

whether to take a temporary housing 

action. In proposed § 9.13(c)(3), 

consistent with the aforementioned 

proposed changes to § 9.13(c)(1), FEMA 

proposes to revise the prohibition 

against housing an individual or family 

in the ‘‘floodplain’’ (which applies 

unless Regional Administrator has 

complied with the provisions in 

proposed § 9.9 to determine that the site 

is the only practicable alternative), by 

instead referring to the ‘‘1 percent 

annual chance (base) floodplain.’’ 

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. 

Consistent with the proposed change 

to incorporate group sites into this 

section, FEMA proposes to add 

§ 9.13(c)(4) to clarify that Step 4 of the 

8-step process continues to apply to 

group sites. As explained above, group 

sites are generally a more intensive 

action for the agency, as they involve 

the development of a new site on which 

to place housing. By adding this 

paragraph, FEMA is proposing to ensure 

that step 4 of the 8-step process is 

applied to group sites in accordance 

with § 9.10 and that the effects of 

proposed actions are identified. FEMA 

is making this proposal because 

developing a new group site frequently 

involves development of infrastructure 

that could result in future development 

in the floodplain, to a greater extent 

than actions taken in existing private or 

commercial sites. 

In the 2016 NPRM, FEMA proposed 

the addition of language to current 

paragraph (d)(4)(i) to require that actual 

elevation levels of temporary housing 

units would be based on manufacturer 

specifications and applicable Agency 

guidance. Specifically, the 2016 NPRM 

stated that it was not always practicable 

to elevate mobile homes to a given level 

and that the proposed rule would 

require that such homes be elevated to 

the fullest extent practicable. 81 FR at 

57419. This NPRM does not seek to add 

that language because the current 

regulatory text in paragraph (d)(4)(i) 

requires these homes to be elevated ‘‘to 

the fullest extent practicable.’’ FEMA 

believes that what constitutes the fullest 

extent practicable will vary by location, 

temporary housing unit type, and a 

range of other variables not suited for 

comprehensive identification in the 

regulation. While FEMA’s current 

practice is to consider manufacturer 

specifications, the agency is no longer 

seeking to codify that sole variable into 

the regulation and will instead clarify 

the variables to consider in agency 

procedures. 

FEMA seeks to clarify that the agency 

will not temporarily place a housing 

unit unless the placement is consistent 

with the criteria of the NFIP or any more 

restrictive Federal, State, or local 

floodplain management standards. The 

NFIP requires that these units be 

elevated to at least the base flood 

elevation, absent a variance.98 See 

proposed § 9.13(c)(5)(ii). FEMA also 

proposes to substitute ‘‘44 CFR parts 

59–60’’ for ‘‘44 CFR part 59 et seq.’’ 

(which currently appears in paragraph 

9.13(d)(4)(ii), to clarify the specific 

sections of the regulations the language 

references. In addition, although not 

directly stated in current part 9, it is 

current FEMA practice to complete Step 

8 for temporary housing units. FEMA 

seeks to add proposed § 9.13(c)(7) to 

clarify that the agency must complete 

Step 8, ensuring that the requirements 

and decision-making process are fully 

integrated into the provision of 

temporary housing and current practices 

are codified in regulation. 

In proposed § 9.13(d)(2), FEMA also 

proposes to require the elevation of 

temporary housing units to at least the 

level of the FFRMS floodplain if FEMA 

intends to permanently install a unit 

that the agency is selling or otherwise 

disposing of that is located in the 

FFRMS floodplain.99 This proposal is 

consistent with other proposed changes 

in section 9.4 to the definition of new 

construction, which now includes 

permanent installation of a temporary 

housing unit, and the definition of an 

action subject to the FFRMS as new 

construction is subject to the FFRMS. 

Any sale or disposal of a temporary 

housing unit that includes permanent 

installation of a temporary housing unit 

for residential purposes no longer 

constitutes temporary housing; FEMA 

believes that any unit that is 

permanently installed 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 permanent 

installation of a temporary housing unit 

would also be required meet NFIP 

requirements of residential structures by 

elevating the lowest floor to or above the 

base flood elevation, absent a 

variance.100 See proposed § 9.13(d)(2). 

The proposed requirement to elevate 

to the FFRMS floodplain when 

permanently installing these units as 

part of a sale may result in fewer 

temporary housing units being sold by 

FEMA as it will not always be 

practicable or feasible to elevate a 

temporary housing unit to the FFRMS 

requirement. However, this condition is 

not the only condition placed on the 

sale to applicants of temporary housing 

units that will be permanently installed. 

FEMA already places eligibility and sale 

conditions on these units to applicants. 

The sale of a temporary housing unit to 

an applicant currently requires the unit 

to be sold only to an individual or 

household occupying the unit, and 

requires that the site of the permanent 

placement comply with local codes and 

ordinances, and also complies with 44 

CFR part 9.101 FEMA also places a 

condition of sale on these units to 

include requirements for those units 


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102See 44 CFR 206.118(a)(1)(iii). 

103The Robert T. Stafford Disaster Relief and 

Emergency Assistance Act § 408(c)(1)(B)(iii), 42 

U.S.C. 5174(c)(1)(B)(iii), 44 CFR 206.110(e), and 

Individual Assistance Program Policy and Guide 

(IAPPG) Version 1.1, pgs. 41, 98, found at https:// 

www.fema.gov/assistance/individual/policyguidance-and-fact-sheets (last accessed July 12, 

2023). 

104See Individual Assistance Program Policy and 

Guide (IAPPG) Version 1.1, pg. 119, found at 

https://www.fema.gov/sites/default/files/ 

documents/fema_iappg-1.1.pdf (last accessed July 

12, 2023). 

located in a special flood hazard area to 

purchase flood insurance.102 Given the 

current conditions that apply to the sale 

of these units to applicants, FEMA does 

not believe the additional FFRMS 

floodplain requirement will overly 

burden applicants as FEMA currently 

intends to cover the costs of any 

additional elevation required for 

permanent installation when selling to 

an applicant. 

Because this permanent installation 

constitutes a permanent housing 

solution for applicants as opposed to a 

temporary one lasting 18–24 months on 

average,103 the agency believes these 

mitigation actions are necessary to 

minimize the long-term risk to human 

health, safety, and welfare associated 

with flooding and to meet the agency’s 

obligation to lessen the impacts of our 

actions that relate to development in 

and occupancy of the floodplain. These 

units are generally sold for permanent 

installation in communities where 

individuals lack other permanent 

housing options through no fault of 

their own.104 Not requiring the higher 

resilience standard for these units 

would make the units more susceptible 

to future flood risks. Permanent 

installation of these units by sale to an 

applicant increases the housing stock in 

the community and FEMA seeks to 

ensure that new housing in these 

communities meets these higher 

resilience standards. Communities with 

less resilient housing become more 

susceptible to future flood risks. A more 

resilient and equitable nation requires 

that resilience standards be applied to 

protect life, health, and safety of all 

communities. FEMA believes the 

FFRMS requirement for permanent 

installation of housing units will 

improve community resilience and 

floodplain management long term, 

consistent with the intent of the FFRMS. 

By promoting safer permanent housing 

placement, FEMA can mitigate future 

flood risks particularly for those 

individuals and communities that have 

been historically disadvantaged. 

Additionally, FEMA is proposing to 

change the paragraph structure of § 9.13. 

No substantive changes are intended as 

a result of this restructuring. 

O. Section 9.14—Disposal of Agency 

Property 

FEMA proposes minor clarifying edits 

consistent with other proposed changes 

throughout this part. In § 9.14(b)(4), 

FEMA proposes clarifying edits 

consistent with other changes in the 

regulatory text, replacing the term 

‘‘support’’ with the term ‘‘support of 

floodplain and wetland development.’’ 

These edits would be made for clarity 

and would be consistent with the 

proposed definition of ‘‘Support of 

Floodplain and Wetland Development’’ 

found in proposed § 9.4. As previously 

explained, this clarification helps 

further delineate the agency’s 

requirement to consider the impacts to 

floodplains and wetlands and how 

decisions made in this part could 

directly or indirectly result in increased 

development in a floodplain or wetland. 

These edits would help eliminate 

confusion regarding the use of the term 

‘‘support’’ in the regulatory text and 

ensure that actions taken under part 9 

were done with the intent not to support 

floodplain and wetland development 

consistent with Executive Order 11988, 

as amended, and Executive Order 

11990. 

In paragraph 9.14(b)(5), which 

currently directs FEMA to focus on 

minimization through floodproofing and 

restoration of natural values where 

improved property is involved, FEMA 

proposes to also require consideration of 

elevation. Elevation may be an 

appropriate focus of the minimization 

analysis depending on the nature of the 

improved structure; the current text’s 

emphasis on floodproofing and 

restoration of natural values, to the 

exclusion of elevation, is unwarranted. 

FEMA proposes to make changes to 

paragraph (b)(7)(ii) to eliminate 

reference to the ‘‘flood fringe’’ and 

instead explain this concept in 

terminology more consistently used 

throughout part 9. This change would 

reduce the overall technical terminology 

used in the regulation, making it easier 

for stakeholders to understand the key 

concepts around flood risk and the 

application of part 9. 

P. Section 9.16—Guidance for 

Applicants 

FEMA proposes clarifying edits in 

§ 9.16(b) to eliminate examples. The 

examples provided in current paragraph 

(b) do not necessarily reflect current 

agency terminology and, rather than 

limit the agency to current 

nomenclatures, FEMA proposes to 

eliminate references to the examples 

here. FEMA proposes edits in paragraph 

(b)(2) to clarify that the decision-making 

process set out in § 9.6 relates to the 

determination of whether to take action 

in floodplains or wetlands. FEMA is 

proposing this change to clarify that the 

decision made in § 9.6 is the decision to 

act (or not take action) in the floodplain 

or wetland, not a decision generally on 

eligibility for assistance. FEMA 

recognizes that the decision to take no 

action may result in no assistance being 

provided, but that decision is not the 

only decision point in § 9.6. FEMA also 

proposes additional clarifying edits in 

§ 9.16(b)(3)–(5) and § 9.16(c) for 

readability. 

Q. Section 9.17—Instructions to 

Applicants 

FEMA proposes clarifying edits 

throughout this section for readability. 

Additionally, in paragraph (a), FEMA 

proposes to add ‘‘as amended’’ to reflect 

amendments to Executive Order 11988 

and in paragraph (b), FEMA proposes to 

update the reference to the 1978 

Guidelines to the full title for the 

Revised Guidelines. FEMA also 

proposes additional clarifying edits in 

§ 9.17(b)(3)–(5) to stay consistent with 

§ 9.16(b)(3)–(5). 

R. Section 9.18—Responsibilities 

FEMA also proposes clarifying edits 

throughout this section, including 

updating the references to the Assistant 

Administrator to refer to FEMA 

Resilience as the office within FEMA 

that will review Regional Administrator 

decisions that are appealed and adding 

‘‘as amended’’ to reflect amendments to 

Executive Order 11988. 

S. Appendix A to Part 9—DecisionMaking 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 the amendments to Executive 

Order 11988 and the Revised 

Guidelines, there is no utility to 

including the appendix in regulation. 

Instead, FEMA would include a revised 

version of the appendix, including the 

new decision-making process and the 

definition of the floodplain, in its policy 

implementing the FFRMS. 

V. Comments Received Associated With 

Part 9 Revisions 

As explained above, FEMA previously 

sought to revise part 9 to incorporate the 

FFRMS. On November 17, 2015, FEMA 

released for public comment FEMA’s 

Overview of FEMA’s Intent to 


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105Available on the public docket for FEMA– 

2015–0006 at FEMA–2015–0006–0359. 

106The comments are available on regulations.gov 

under docket ID FEMA–2015–0006. 

107Risbey et al. 2014. Well-estimated global 

surface warming in climate projections selected for 

ENSO phase. ‘‘Nature Climate Change,’’ 4, 835–840, 

at https://www.nature.com/articles/nclimate2310 

(last accessed July 12, 2023). 

108See 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. 

109See Executive Order 13985, ‘‘Advancing 

Racial Equity and Support for Underserved 

Communities Through the Federal Government,’’ 86 

FR 7009 (Jan. 25, 2001); Executive Order 13990 

‘‘Protecting Public Health and the Environment and 

Restoring Science to Tackle the Climate Crisis,’’ 86 

FR 7037 (Jan. 25, 2021); and Executive Order 14009, 

‘‘Tackling the Climate Crisis at Home and Abroad,’’ 

86 FR 7619 (Feb. 1, 2021). 

110 ‘‘Request for Information on the National 

Flood Insurance Program’s Community Rating 

System,’’ 86 FR 47128 (Aug. 23, 2021) and ‘‘Request 

for Information on the National Flood Insurance 

Program’s Floodplain Management Standards for 

Land Management and Use, and an Assessment of 

the Program’s Impact on Threatened and 

Endangered Species and Their Habitats,’’ 86 FR 

56713 (Oct. 12, 2021). 

Implement the FFRMS (Intent).105

Continuing our commitment to an open, 

collaborative, stakeholder-focused 

process in implementing the FFRMS, 

FEMA shared this framework for public 

comment on FEMA’s website 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.106

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. 

The adverse comment 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 actual historical climate data 

to measure the confidence of the 

models’ abilities to accurately predict 

future climate conditions.107 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.108 These studies provide 

confidence in accuracy of climate 

models’ projections of future climate 

conditions. Within the 10 supportive 

comments, the commenters provided 

suggestions and asked questions 

concerning FEMA’s proposed 

framework. FEMA took these comments 

and questions into consideration during 

the drafting process for this proposed 

rule. 

On August 22, 2016, FEMA issued a 

Notice of Proposed Rulemaking 

‘‘Updates to Floodplain Management 

and Protection of Wetlands Regulations 

To Implement Executive Order 13690 

and the Federal Flood Risk Management 

Standard.’’ 81 FR 57401. In response to 

the NPRM, FEMA received submissions 

from 78 commenters. Eighty percent of 

the comments were favorable. Favorable 

commenters noted the NPRM 

represented working ‘‘smarter, not 

harder,’’ and emphasized the 

importance of protecting taxpayer 

investments in areas that are vulnerable 

to recurring damage, considering future 

flooding from a sustainability point of 

view, and harmonizing Federal 

requirements with efforts already 

underway in States and local 

communities. FEMA also received 

comments that were unfavorable and 

suggestions for changes to the proposed 

rule. FEMA considered these comments 

and suggestions in drafting this new 

proposed rule. Specifically, FEMA is 

incorporating suggestions received to (1) 

resolve concerns in the definitions 

section by adding a definition for 

‘‘actions subject to the FFRMS’’ and 

retaining the definition of ‘‘emergency 

actions’’ (as opposed to changing the 

defined term ‘‘emergency work,’’ as 

FEMA had proposed in 2016); (2) set the 

effective date of the rule’s changes and 

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 while only new actions would be 

subject to revised part 9 ensuring the 

changes would not be applied to 

projects which have already been 

reviewed for compliance with Executive 

Order 11988 and may have incurred 

design expenses to meet the current 

floodplain management standards in 

§ 9.5(a)(3); and (3) update § 9.7(c) to 

provide additional clarity in the 

floodplain determination process and 

incorporate additional relevant sources 

of available information for the 

floodplain determination. FEMA is also 

incorporating suggestions to ensure 

flexibility in the implementation of 

FFRMS while also leveraging the best 

available and actionable data to enhance 

resilience by utilizing the CISA where 

data is available and actionable and 

providing options for the use of the FVA 

or 0.2PFA depending on the type of 

action involved and data availability 

and actionability for each of the 

remaining approaches, while also 

addressing equity and cost concerns. 

In April 2021, FEMA issued a Request 

for Information (RFI) on FEMA’s 

Programs, Regulations, and Policies. 86 

FR 21325 (Apr. 22, 2021). The RFI 

sought input from the public on specific 

FEMA programs, regulations, 

collections of information, and policies 

for the agency to consider modifying, 

streamlining, expanding, or repealing in 

light of recent Executive Orders.109

FEMA issued two additional RFIs 

associated with the National Flood 

Insurance Program 110 in 2021. FEMA 

received comments related to 44 CFR 

part 9 as a result of each of these 

requests. FEMA received eight 

comments that discussed the FFRMS. 

One comment suggested confusion 

exists between the FFRMS and the 

floodplain management standards under 

the National Flood Insurance Program. 

The remaining seven comments were 

supportive of implementing the FFRMS 

and/or incorporating the FFRMS into 

the National Flood Insurance Program’s 

floodplain management standards to 

increase resilience for communities. 

While changes to the floodplain 

management standards are outside this 

scope of this rulemaking, FEMA is 

considering a rulemaking to revise the 

NFIP minimum standards and will 

assess the expression of support from 

these comments in that future effort. 

VI. Regulatory Analyses 

A. Executive Order 12866, Regulatory 

Planning and Review & Executive Order 

13563, Improving Regulation and 

Regulatory Review 

Executive Orders 12866 (Regulatory 

Planning and Review), as amended by 

Executive Order 14094 (Modernizing 

Regulatory Review) and 13563 

(Improving Regulation and Regulatory 

Review) direct agencies to assess the 

costs and benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributive impacts, and 


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111A critical action is any activity for which even 

a slight chance of flooding would be too great. A 

non-critical action is any activity not considered a 

critical action. 

112For all projects in coastal areas, if the 0.2 

percent annual chance flood elevations do not 

account for the effects of wave action, the 

appropriate FVA must be used to determine the 

FFRMS floodplain. 

113 Department of Homeland Security. Natural 

Disasters. https://www.dhs.gov/natural-disasters 

(last accessed July 12, 2023). 

114Climate change impacts. National Oceanic and 

Atmospheric Administration. U.S. Department of 

Commerce. https://www.noaa.gov/education/ 

equity). Executive Order 13563 

emphasizes the importance of 

quantifying both costs and benefits, of 

reducing costs, of harmonizing rules, 

and of promoting flexibility. 

The Office of Management and Budget 

(OMB) has designated this rule a 

‘‘significant regulatory action’’ as 

defined under section 3(f) of Executive 

Order 12866, as amended by Executive 

Order 14094, but it is not significant 

under section 3(f)(1) because its annual 

effects on the economy do not exceed 

$200 million in any year based on the 

analysis conducted. Accordingly, OMB 

has reviewed it. 

This Regulatory Impact Analysis 

(RIA) provides an assessment of the 

potential costs, benefits, and transfer 

payments from the Updates to 

Floodplain Management and Protection 

of Wetlands Regulations to Implement 

the Federal Flood Risk Management 

Standard (FFRMS) Notice of Proposed 

Rulemaking (NPRM). This analysis does 

not attempt to replicate the regulatory 

language of the proposed rule or any 

other supporting documentation. FEMA 

urges the reader to review the NPRM 

before reviewing this report. 

The FFRMS is a flood resilience 

standard that is required for ‘‘Federally 

funded projects’’ and provides a flexible 

framework to increase resilience against 

flooding and to help preserve the 

natural values of floodplains and 

wetlands. A floodplain is any land area 

that is subject to flooding and refers to 

geographic features with undefined 

boundaries. FEMA proposes to 

incorporate the FFRMS into its existing 

processes, to ensure that the floodplain 

for an action subject to the FFRMS is 

expanded from the current base flood 

elevation to a higher vertical elevation 

and corresponding horizontal floodplain 

and that, where practicable, natural 

systems, ecosystem processes, and 

nature-based approaches would be 

considered when developing 

alternatives to locating Federal actions 

in the floodplain. 

Under current FEMA regulations set 

out in 44 CFR part 9, the floodplain is 

defined as the 100-year floodplain (1 

percent annual chance) for non-critical 

actions and as the 500-year floodplain 

(0.2 percent annual chance) for critical 

actions. New construction or substantial 

improvement of structures located in a 

floodplain must be elevated to or above 

the 1 percent annual chance flood level 

or base flood elevation (BFE). For 

critical actions, the new construction or 

substantial improvement of structures 

must be elevated to or above the 0.2 

percent annual flood level. Nonresidential structures may be 

appropriately floodproofed rather than 

elevated to meet the applicable flood 

level. 

This rule proposes to implement the 

FFRMS policy in the expanded 

floodplain and codify implementation 

of the FFRMS policy in the current 

floodplain. FEMA has already 

implemented partial interim policies for 

PA and HMA, discussed in further 

detail below. Depending on the 

program, these programs apply the 

FFRMS policy either to the base 

floodplain, or to both the 100-year (base 

floodplain) and 500-year floodplain (for 

critical actions). Following guidance in 

OMB Circular A–4, FEMA assessed each 

impact of this rule against a preguidance baseline. The pre-guidance 

baseline is an assessment against what 

the world would be like if the relevant 

guidance (i.e., the partial interim 

policies for PA and HMA) had not been 

implemented. 

At the time this RIA was conducted, 

these partial implementation policies 

had been in place for less than 6 

months, which is an insufficient period 

to provide adequate data for analysis. 

Therefore, FEMA was unable to 

complete an in-depth analysis of the 

impact of these interim policies. 

Accordingly, FEMA used a pre-guidance 

baseline for this proposed rule to 

measure the impacts of the rule against 

the world without the interim PA and 

HMA policies. 

Under the proposed rule, the Climate 

Informed Science Approach (CISA) 

would result in a flood elevation and 

corresponding horizontal expansion 

floodplain determination utilizing the 

best-available, actionable hydrologic 

and hydraulic data and methods that 

integrate current and future changes in 

flooding based on climate science. CISA 

is FEMA’s preferred policy approach as 

FEMA believes it has the potential to be 

the best and most well-informed 

approach to building resilience in an 

equitable manner and ensuring a 

reduction in disaster suffering. CISA is 

the only approach that ensures projects 

are designed to meet current and future 

flood risks unique to the location and 

thus ensures the best overall resilience, 

cost effectiveness, and equity. The 

FFRMS considerations require FEMA to 

consider the type of criticality of the 

action involved, the availability and 

actionability of data, and equity 

concerns, as further explained in the 

current proposed supplementary policy. 

As actionable climate data are not 

currently available for all locations, 

FEMA is proposing the Freeboard Value 

Approach (FVA) and 0.2 Percent 

Annual Chance Flood Approach 

(0.2PFA) alternatives in the absence of 

actionable CISA data. Specifically: 

• For critical actions: 111 FEMA 

proposes the higher of the +3-foot FVA 

floodplain or the 0.2PFA floodplain.112

Where the 0.2PFA data are not 

available, the +3-foot FVA will be 

utilized. 

• For non-critical actions: FEMA 

proposes the lower of the +2-foot FVA 

or 0.2PFA. 

The floodplain established by the 

FVA is the equivalent of the 1 percent 

annual chance floodplain (also known 

as the 100-year flood), plus either 2- or 

3-ft of vertical elevation, as applicable 

based on criticality, and a 

corresponding increase in the horizontal 

extent of the floodplain. The increased 

horizontal extent will not be the same 

in every case. When the same vertical 

increase is applied in multiple actions 

subject to the FFRMS 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 action. 

Projects that are located near the 

SFHA, but not in it, may be in the 

expanded FFRMS floodplain. Currently, 

there are no FEMA products depicting 

the boundary of the FFRMS floodplain. 

For this reason, FEMA and its 

interagency partners are developing 

various tools, like a FFRMS floodplain 

determination job aid and a web-based 

decision support tool, that would 

provide the agency a guide to 

determining the FFRMS floodplain and 

flood elevation levels to use for the 

projects. The web-based decision 

support tool would take into account 

the best available and actionable data. 

However, if this tool is not available to 

determine the FFRMS floodplain, FEMA 

would likely utilize the FFRMS 

floodplain determination job aid. 

FEMA believes that the benefits of the 

rule—quantified and unquantified— 

would justify its costs. Flooding is the 

most common type of natural disaster in 

the United States,113 and floods are 

expected to be more frequent and more 

severe over the next century due to the 

projected effects of changing 

conditions.114 115 The ocean has 


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resource-collections/climate/climate-changeimpacts (last accessed July 12, 2023). 

115 1 Walsh, J., D. Wuebbles, K. Hayhoe, J. Kossin, 

K. Kunkel, G. Stephens, P. Thorne, R. Vose, M. 

Wehner, J. Willis, D. Anderson, S. Doney, R. Feely, 

P. Hennon, V. Kharin, T. Knutson, F. Landerer, T. 

Lenton, J. Kennedy, and R. Somerville, 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. Doi.10.7930/J0KW5CXT. Page 20. 

https://nca2014.globalchange.gov/downloads/low/ 

NCA3_Climate_Change_Impacts_in_the_

United%20States_LowRes.pdf (last accessed July 

12, 2023). 

116 Id. at pg. 21. 

117Supplementary Material for the Regulatory 

Impact Analysis for the Supplemental Proposed 

Rulemaking, ‘‘Standards of Performance for New, 

Reconstructed, and Modified Sources and 

Emissions Guidelines for Existing Sources: Oil and 

Natural Gas Sector Climate Review. Environmental 

Protection Agency (EPA). https://www.epa.gov/ 

system/files/documents/2022-11/epa_scghg_report_

draft_0.pdf. Page 36. Last accessed: September 14, 

2023. 

118EPA uses the Framework for Assessing 

Changes To Sea-level (FACTS) and Building Blocks 

for Relevant Ice and Climate Knowledge (BRICK) 

sea-level rise models for their projections. 

119Payne, J., Sweet, W., Felming, E., Craghan, M., 

Haines, J., Hart, J., Stiller, H., Sutton-Frier, A., Kruk, 

M., 2018. Impacts, Risks, and Adaptation in the 

United States: Fourth National Climate Assessment, 

Volume I. Ch 8: Coastal Effects. National Climate 

Assessment. https://nca2018.globalchange.gov/ 

downloads/NCA4_Ch08_Coastal-Effects_Full.pdf. 

Page 329. Last accessed September 14, 2023. 

120U.S. billion-dollar weather and climate 

disasters. Climate.gov. https://www.ncei.noaa.gov/ 

access/billions/summary-stats/US/1980-2021 (last 

accessed July 12, 2023). Flood related damages are 

from flooding, severe storms, and tropical cyclones. 

Data are CPI adjusted. 

121FEMA used an average of the number of 

affected projects during the prior 10-year period to 

estimate the average annual impacts of the future 

10-year period. 

122 If FEMA limited the analysis to only 10 years 

of impacts, it would consider all of the costs and 

transfers but only a small portion of the benefits 

from additional protection from flood events 

because the life of the structure is more than 10 

years. After year 10, the proposed rule would 

continue to impact FEMA projects funding new 

construction, substantial improvements or repairs 

to fix substantial damage, but FEMA chose to limit 

the analysis to 10 years of affected structures 

because FEMA believes the number of structures 

affected in this 10-year period is enough to provide 

a reasonable estimate of the costs, benefits, and 

transfers resulting from the proposed rule. 

Accordingly, FEMA’s analysis focuses on the 50- 

year impacts of the rule on projects that take place 

in the nearest 10-year period, for a total period of 

analysis spanning 60 years. 

warmed, polar ice has melted, and 

porous landmasses have subsided.116

Global sea level has risen by about 8 

inches since reliable record keeping 

began in 1880. While a conservative 

scenario projects a sea level rise under 

a meter (or 3.3-ft) by 2100,117 118 it is 

projected to rise upwards of 8 feet by 

2100 in an extreme scenario.119 Floods 

are costly natural disasters; between 

1980 and 2021, the United States 

suffered more than $1.7 trillion (in 2021 

dollars) in flood-related damages.120

This proposed rule would help protect 

Federal investments from future floods 

and would help minimize harm in 

floodplains by changing the standards 

used to determine future risk for FEMAfunded new construction and 

substantial improvement or to address 

substantial damage (i.e., ‘‘Federally 

funded projects’’). 

The requirements of this rule would 

apply to grants for projects funding the 

new construction, substantial 

improvement, or repair of substantial 

damage under FEMA programs such as 

Individual Assistance (IA), Public 

Assistance (PA), Hazard Mitigation 

Assistance (HMA) programs, and grants 

processed by FEMA’s Grants Programs 

Directorate (GPD) (involving grants for 

preparedness activities). The primary 

focus of this analysis is to estimate the 

costs and benefits resulting from a 

higher vertical elevation and associated 

horizontal expansion of the floodplain 

for specific projects paid for with 

Federal funds. The expected impacts of 

this proposed rule primarily result from 

the cost for the increased elevation or 

floodproofing requirements of structures 

in the FFRMS floodplain. The majority 

of these costs would be funded by 

FEMA through several grant programs. 

For the grant programs that have a costshare requirement, FEMA grant 

recipients typically would bear about 25 

percent of the elevation and 

floodproofing project costs. 

Additionally, FEMA expects to incur 

costs for administration of the proposed 

requirements, including training FEMA 

personnel. 

To estimate how many projects would 

be subject to the requirements of this 

rule, FEMA used historical PA, IA, and 

HMA data. First, FEMA estimated the 

number of past new construction, 

substantial improvement, or repairs to 

substantial damage projects were in the 

existing floodplain. Next, FEMA relied 

upon data from samples of floodplain 

expansion at varying levels of freeboard 

in inland and coastal areas to estimate 

an average percentage expansion of the 

floodplain under each of the three 

FFRMS approaches. FEMA then 

multiplied the expansion percentages by 

the estimated number of projects in the 

current floodplain to estimate the 

number of projects that would be in the 

expanded floodplain under each of the 

FFRMS approaches. 

To estimate the cost of the proposed 

elevation requirements, FEMA used 

reports from the National Flood 

Insurance Program (NFIP) to determine 

the increased cost per square foot 

associated with elevation and 

floodproofing. FEMA presents the costs 

as a range because of uncertainty about 

whether new construction projects 

would choose to floodproof or elevate. 

Finally, to present the total impacts of 

the proposed rule, FEMA analyzed the 

impact of the FVA, 0.2PFA, and CISA 

for each of the programs, PA, IA, and 

HMA, as if each approach were the only 

FFRMS expansion option. This is 

because it is unknown exactly how 

many projects would be subject to the 

FVA, 0.2PFA, or CISA requirements 

under the proposed rule as this will 

continue to change with the addition of 

CISA data over time. Accordingly, 

FEMA estimated the costs of the 

proposed requirements for each of the 

approaches separately. This allowed 

FEMA to create a range for each 

approach. FEMA opted to use this 

methodology because it would allow 

FEMA to estimate the highest and 

lowest probable costs, transfers, and 

benefits associated with each of the 

FFRMS expansion options for each of 

the programs. 

FEMA examined the number of 

projects that would be subject to the 

proposed requirements in the first 10 

years after the rule’s publication.121

FEMA’s analysis focused on the costs, 

benefits, and transfer payments (i.e., 

impacts on FEMA grants), that would 

result over a 50-year period from 

applying the requirements of the 

proposed rule to those projects, for a 

total period of analysis spanning 60 

years. For example, if a structure is built 

in Year 10, the analysis covers 50 years 

of costs, benefits, and transfers for that 

structure starting in Year 10. However, 

if a structure is built in Year 11, that is 

outside of the first 10 years and so the 

analysis does not consider the costs, 

benefits, or transfers of the proposed 

requirements on that structure.122 The 

costs and transfers occur in the first 10 

years of the 60-year period because that 

is when the initial investment to elevate 

or floodproof those projects take place. 

This is an upfront cost that occurs when 

the project is constructed. However, the 

benefits of the proposed rule are 

estimated over the 50-year useful life of 

the affected structures. 

The table below provides the 

estimated number of structures and 

facilities affected by the proposed rule 

over the first 10 years, assuming that 

each approach is the only expansion 

option. Structures, which are walled 

and roofed buildings, would comply 

with the proposed FFRMS through 

elevating or floodproofing to the 

required height. Facilities, which are 

any human-made or human-placed 

items other than a structure such as 

roads and bridges, would require 

different mitigation measures in order to 


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123To obtain total costs using tables 6 and 7, 

please see rows CISA Total (primary) (+5-ft) and 

FEMA admin. 

124For FEMA’s primary estimate, FEMA used 59 

inches of SLR due to it being the closest SLR option 

to CISA+5-ft. CISA is the preferred approach for 

FFRMS if the data are available. Since 5 ft is 

equivalent to 60 inches (5 × 12 inches per foot), 59- 

inch SLR would be the closest SLR option that 

FEMA has available to use for this portion of the 

analysis. 

comply with the increased resiliency 

standard of the proposed rule. The 

monetized impacts of this rule are 

representative of the floodproofing and 

elevation mitigation measures that 

would be required of structures. 

However, for reasons explained in more 

detail later, FEMA was unable to 

monetize the impacts of the rule for 

facilities. 

TABLE 5—ESTIMATED NUMBER OF STRUCTURES AND FACILITIES AFFECTED BY THE PROPOSED RULE IN YEARS 1–10 

FFRMS approach 

Structures Total 

structures 

Facilities Total 

facilities 

Total 

projects PA IA HMA PA HMA 

FVA ................................................ 1,090 2,650 9,492 13,232 20,120 841 20,961 34,193 

0.2PFA ........................................... 840 2,650 9,447 12,937 20,120 841 20,961 33,898 

CISA ............................................... 1,173 2,903 10,351 14,427 20,120 841 20,961 35,388 

The proposed rule would increase 

construction and resiliency standards 

for FFRMS-affected structures and 

facilities. Implementing these standards, 

through higher vertical elevation or 

floodproofing, or other mitigation 

measures, is new economic activity that 

would result from this rule. 

Accordingly, these compliance activities 

are a cost of this rule. 

Using CISA as the primary approach, 

FEMA estimates that this proposed rule 

would affect 14,427 PA, IA, and HMA 

structures over the first 10 years, which 

would result in a total cost of between 

$142.1 million and $156.3 million, 

undiscounted, over the 60-year period 

of analysis. Discounted, the low 

estimate cost would be between $121.3 

million and $100 million, using 3 and 

7 percent respectively, with a 60-year 

annualized cost between $4.4 million 

and $7.1 million, using 3 and 7 percent. 

Discounted, the high estimate cost 

would be between $133.4 million and 

$109.9 million, using 3 and 7 percent 

respectively, with a 60-year annualized 

cost between $4.8 million and $7.8 

million, using 3 and 7 percent 

respectively. These costs include 

additional training for FEMA staff as 

well as the total cost for additional 

elevation and floodproofing.123 FEMA 

was unable to quantify the cost for 

increased resiliency standards for an 

estimated 20,961 affected facility 

projects over the 10-year period of 

analysis. Additionally, FEMA was 

unable to quantify the cost for projects 

that may be diverted out of the 

floodplain, impacts to projects with 

existing basements, project delays, or 

forgone projects that may result from 

this rule. 

Because the cost to implement the 

proposed mitigation measures would be 

shared between FEMA and grant 

recipients according to the statutory cost 

share, there are also important 

distributional impacts. The majority of 

these costs would be borne by FEMA 

through additional grants (a transfer 

from FEMA to grant recipients). Grant 

recipients would bear the remaining 

cost. Using CISA as the primary 

approach, FEMA estimated that this 

proposed rule would affect 14,427 

structures in the first 10 years, which 

would result in an increase in transfers 

from FEMA to grant recipients of 

between $109.2 million and $119.6 

million, undiscounted, over the 60-year 

period of analysis. FEMA presents the 

change in transfer payments as a range 

because of uncertainty regarding 

whether new construction projects 

would be floodproofed or elevated. 

Discounted, the low estimate would be 

$93.2 million and $76.7 million, using 

3 and 7 percent respectively, with a 60- 

year annualized increase in transfers 

between $3.4 million and $5.5 million, 

at 3 and 7 percent respectively. 

Discounted, the high estimate would be 

$102.1 million and $84.0 million, using 

3 and 7 percent respectively, with a 60- 

year annualized increase in transfers 

between $3.7 million and $6.0 million, 

at 3 and 7 percent respectively. Grant 

recipients would be responsible for 

between $29.2 million and $31.7 

million, undiscounted. Discounted, the 

low estimate would be $24.9 million 

and $20.5 million, using 3 and 7 percent 

respectively, with a 60-year annualized 

amount between $0.9 million and $1.5 

million, at 3 and 7 percent respectively. 

Discounted, the high estimate would be 

$27.0 million and $22.2 million, using 

3 and 7 percent respectively, with a 60- 

year annualized amount of $1.0 million 

and $1.6 million, at 3 and 7 percent 

respectively. Not included in these 

estimates are the additional grants 

FEMA would provide, and additional 

costs recipients would incur for their 

portion of the cost share, for any of the 

elevation and floodproofing costs that 

FEMA was unable to monetize. 

FEMA was able to quantify benefits 

for a portion of projects affected by the 

rule. Using CISA as the primary 

approach, FEMA estimated that 1,173 

PA Category E (Public Buildings and 

Contents) projects would be subject to 

the FFRMS in the first 10 years. 

Assuming a 59-inch Sea Level Rise,124

FEMA estimated that the present value 

benefits of one additional foot of 

freeboard for the 50-year useful life of 

projects undertaken during the 10-year 

period of analysis would be between 

$55.2 million and $62.0 million, 

undiscounted. The low estimate would 

range between $47.1 million and $38.8 

million, discounted at 3 and 7 percent 

respectively, with a 60-year annualized 

benefit between $1.7 million and $2.8 

million. The high estimate would range 

between $52.9 million and $43.5 

million, discounted at 3 and 7 percent 

respectively, with a 60-year annualized 

benefit between $1.9 million and $3.1 

million. These quantified benefits 

include estimates of avoided physical 

damage, avoided displacement, and 

avoided loss of function for the 1,173 

PA Category E projects over their 50- 

year useful life. In addition, 

unquantified benefits of this proposed 

rule include the reduction in damage to 

13,254 affected IA and HMA structures 

and their contents from future floods, 

20,961 PA and HMA facilities, potential 

lives saved, public health and safety 

benefits, reduced recovery time from 

floods, and increased community 

resilience to flooding. 

Tables 6 and 7 show the estimated 

low and high costs, transfer payments, 

and benefits by FFRMS approach 

(assuming each approach is the only 

expansion option used), as well as by 

program for FEMA’s primary approach. 


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TABLE 6—SUMMARY OF 60-YEAR COSTS, TRANSFERS, AND BENEFITS BY APPROACH AND PROGRAM FOR AFFECTED

PROJECTS IN YEARS 1–10 

[Low estimate, 2021$] 

Costs * Undiscounted 

3% Discount rate 7% Discount rate 

Present value Annualized Present value Annualized 

CISA Total (primary) (+5-ft) ............................................. $138,393,786 $118,052,707 $4,265,594 $97,202,003 $6,923,623 

PA ............................................................................. 102,794,460 87,685,759 3,168,346 72,198,527 5,142,645 

IA ............................................................................... 1,421,690 1,212,730 43,820 998,537 71,125 

HMA .......................................................................... 48,908,310 41,719,781 1,507,459 34,351,150 2,446,806 

FVA Total ......................................................................... 61,994,588 52,882,642 1,910,806 43,542,402 3,101,492 

0.2PFA Total .................................................................... 53,397,625 45,549,257 1,645,829 37,504,256 2,671,399 

FEMA Admin .................................................................... 3,741,680 3,267,150 118,052 2,776,613 197,776 

Not Quantified .................................................................. Not Estimated: Increased resiliency standard for approximately 20,961 facility projects 

over 10 years, Additional costs for Adding Requirements to Buildings with Basements, 

Diversion of Projects Out of the Floodplain, Lifecycle maintenance costs for 

floodproofing, and Project Delays and Forgone Projects. 

Transfer Payments from FEMA to Grant Recipients 

CISA Total (primary) (+5-ft) ............................................. 109,216,359 93,163,768 3,366,283 76,709,000 5,463,923 

PA ............................................................................. 82,955,130 70,762,410 2,556,855 58,264,212 4,150,115 

IA ............................................................................... 1,421,690 1,212,730 43,820 998,537 71,125 

HMA .......................................................................... 36,681,233 31,289,834 1,130,594 25,763,363 1,835,104 

FVA Total ......................................................................... 48,898,424 41,711,348 1,507,154 34,344,206 2,446,311 

0.2PFA Total .................................................................... 41,973,888 35,804,576 1,293,725 29,480,702 2,099,888 

Benefits 

PA (CISA, primary) (+1-ft) ............................................... 55,180,000 47,069,660 1,700,766 38,756,122 2,760,569 

Not Quantified .................................................................. Not Estimated: Damage Avoidance for approximately 13,254 IA and HMA structure 

projects and 20,961 PA and HMA facility projects over 10 years, Potential Lives 

Saved, Increased Public Health and Safety, Decreased Cleanup Time, Protection of 

Critical Facilities, Reduction of Personal and Community Impacts. 

* FEMA focused its analysis on the projects impacted in the first 10 years after the rule’s publication. FEMA considered the resulting costs, 

benefits, and transfer payments of the proposed rule on those projects over a 50-year period, for a total of 60 years. The costs and transfers 

occur in the first 10 years of the 60-year period because that is when the initial investment to elevate or floodproof them to meet the proposed 

requirements takes place. This is an upfront cost that occurs when the project is constructed. However, the benefits of the proposed rule are realized over the 50-year useful life of the affected structures. 

TABLE 7—SUMMARY OF 60-YEAR COSTS, TRANSFERS, AND BENEFITS BY APPROACH AND PROGRAM FOR AFFECTED

PROJECTS IN YEARS 1–10 

[High estimate, 2021$] 

Costs * Undiscounted 

3% Discount rate 7% Discount rate 

Present value Annualized Present value Annualized 

CISA Total (primary) (+5-ft) ............................................. $151,319,537 $129,078,635 $4,663,993 $106,280,511 $7,570,278 

PA ............................................................................. 120,722,020 102,978,331 3,720,912 84,790,095 6,039,533 

IA ............................................................................... 1,421,690 1,212,730 43,820 998,537 71,125 

HMA .......................................................................... 48,908,310 41,719,781 1,507,459 34,351,150 2,446,806 

FVA Total ......................................................................... 68,035,769 58,035,891 2,097,008 47,785,478 3,403,723 

0.2PFA Total .................................................................... 57,766,400 49,275,911 1,780,484 40,572,701 2,889,962 

FEMA Admin .................................................................... 4,942,430 4,291,414 155,061 3,619,968 257,848 

Not Quantified .................................................................. Not Estimated: Increased resiliency standard for approximately 20,961 facility projects 

over 10 years, Additional costs for Adding Requirements to Buildings with Basements, 

Diversion of Projects Out of the Floodplain, Lifecycle maintenance costs for 

floodproofing, and Project Delays and Forgone Projects. 

Transfer Payments from FEMA to Grant Recipients 

CISA Total (primary) (+5-ft) ............................................. 119,647,439 102,061,693 3,687,791 84,035,355 5,985,773

PA ............................................................................. 97,422,670 83,103,514 3,002,776 68,425,607 4,873,903 

IA ............................................................................... 1,421,690 1,212,730 43,820 998,537 71,125 

HMA .......................................................................... 36,681,233 31,289,834 1,130,594 25,763,363 1,835,104 

FVA Total ......................................................................... 53,773,657 45,870,019 1,657,420 37,768,366 1,657,420 

0.2PFA Total .................................................................... 45,499,493 38,811,991 1,402,392 31,956,941 2,276,268 


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125Costs for the FVA may be a better comparison 

because they represent 2 or 3 feet of freeboard, 

depending on criticality. However, the number of 

projects using FVA and CISA differ, making such 

a comparison difficult. 

126FEMA’s PA program requires the use of the 

American Society of Civil Engineers Standard 

(ASCE) 24 that establishes minimum requirements 

for flood-related design and construction of 

structures that are located in whole or in part in 

flood hazard areas for PA projects. FEMA was 

unable to account for these additional baseline 

requirements since FEMA databases do not identify 

projects that were built to ASCE standards as these 

databases were not designed for data analysis. 

Additionally, these standards are based on the flood 

zone where the project is located, and FEMA was 

unable to identify the flood zones where individual 

projects were located. Instead, FEMA measures the 

effects of this rule against the current requirements 

of 44 CFR part 9. Accordingly, the estimated costs 

of compliance for PA structures may be overstated. 

See FEMA Recovery Interim Policy FP–104–009–11 

Version 2, Consensus-Based Codes, Specifications 

and Standards for Public Assistance (December 

2019) FEMA Recovery Interim Policy FP–104–009– 

11 Version 2 (last accessed July 12, 2023) 

(referencing FEMA’s Public Assistance Program and 

Policy Guide, FP104–009–2 (April 2018)). 

127See FEMA, ‘‘FEMA B–797 Hazard Mitigation 

Field Book: Roadways,’’ (2010), available at https:// 

www.fema.gov/sites/default/files/2020-07/b797_

hazmit_handbook.pdf (last accessed July 12, 2023). 

TABLE 7—SUMMARY OF 60-YEAR COSTS, TRANSFERS, AND BENEFITS BY APPROACH AND PROGRAM FOR AFFECTED

PROJECTS IN YEARS 1–10—Continued 

[High estimate, 2021$] 

Costs * Undiscounted 

3% Discount rate 7% Discount rate 

Present value Annualized Present value Annualized 

Benefits 

PA (CISA, primary) (+1-ft) ............................................... 61,985,720 52,875,076 1,910,533 43,536,175 3,101,048 

Not Quantified .................................................................. Not Estimated: Damage Avoidance for approximately 13,254 IA and HMA structure 

projects and 20,961 PA and HMA facility projects over 10 years, Potential Lives 

Saved, Increased Public Health and Safety, Decreased Cleanup Time, Protection of 

Critical Facilities, Reduction of Personal and Community Impacts. 

* FEMA focused its analysis on the projects impacted in the first 10 years after the rule’s publication. FEMA considered the resulting costs, 

benefits, and transfer payments of the proposed rule on those projects over a 50-year period, for a total of 60 years. The costs and transfers 

occur in the first 10 years of the 60-year period because that is when the initial investment to elevate or floodproof them to meet the proposed 

requirements takes place. This is an upfront cost that occurs when the project is constructed. However, the benefits of the proposed rule are realized over the 50-year useful life of the affected structures. 

Quantified estimates of the benefits of 

this rule are available for only PA 

Category E projects. Tables 6 and 7 

show that the total 60-year benefits for 

PA Category E projects in the first 10 

years is $43.5 million (7 percent, high). 

This benefit is for adding one foot of 

freeboard, assuming a 59-inch SLR. 

Although the cost for PA Category E 

projects is $84.8 million, this cost 

represents 5 feet of freeboard (FEMA’s 

assumption for CISA).125 FEMA does 

not have data to quantify the benefits of 

additional freeboard and thus the 

quantified benefits represent only a 

portion of the increased risk reduction 

that would be achieved through this 

rule. Ensuring projects are built to the 

height necessary to avoid additional loss 

scenarios would provide additional 

unquantified benefits of avoided 

damages to the structure, decreased 

cleanup time and disruption to the 

community, and increased public health 

and safety. Moreover, FEMA’s use of 

CISA as its preferred approach would 

use the best available and actionable 

scientific data to tailor future flooding 

risk to each project ensuring that 

projects are built only to the height 

necessary and thus maximizing net 

benefits. Accordingly, FEMA believes 

the benefits of the rule—quantified and 

unquantified—would justify its costs. 

PA Projects 

FEMA provides PA grants to public 

and certain non-profit entities for 

rebuilding, replacement, or repair of 

public and non-profit structures and 

facilities damaged by disasters. PA 

projects that involve new construction, 

substantial improvement, or repairs to 

address substantial damage would be 

affected by this rule.126 FEMA divides 

its PA work into categories A–G. 

Projects funded under PA Categories C 

(Roads and Bridges), D (Water Control 

Facilities), E (Public Buildings), F 

(Utilities), and G (Parks, Recreational 

Areas, and Other Facilities) would be 

affected by the rule, but FEMA is only 

able to provide estimates of costs 

associated with Category E (Public 

Buildings). The reason FEMA was only 

able to provide estimates of costs for 

Category E projects is that Category E 

projects are for structures whereas 

projects funded under the remaining 

categories are for facilities. 

FEMA 44 CFR part 9 classifies 

projects as either structures or facilities. 

Under this proposal, a structure is a 

walled and roofed building, including 

mobile homes and gas or liquid storage 

tanks. Structures are subject to freeboard 

requirements to floodproof or elevate to 

a certain level above the BFE. Freeboard 

is the additional height above the BFE 

to which the structure is floodproofed or 

elevated for the purpose of reducing the 

risk of flood damage. 

In contrast, facilities are any humanmade or human-placed item other than 

a structure, such as roads and bridges. 

Facility mitigation measures are more 

varied and highly project-specific. For 

example, damage to roads during flood 

events can be caused by numerous 

events, such as erosion and scour, 

inundation by floodwater, or debris 

blockage. Likewise, the mitigation 

measures to address the damages can 

include a variety of approaches, such as 

installing low water crossings, 

increasing culvert size, installing a relief 

culvert, adding riprap to a road 

embankment, and many others.127

Due to the vast diversity of facilities, 

the highly project-specific nature of 

facilities projects, and numerous 

options for making them resilient, 

FEMA could not estimate the costs of 

improving flood resiliency of facilities. 

Where facilities are new construction, 

substantial improvement, or 

substantially damaged, they will 

incorporate minimization measures that 

will consider the FFRMS flood 

elevation. However, floodproofing and 

elevation to a specific height would 

likely not be appropriate. FEMA cannot 

estimate the cost due to the variability 

of those measures, which may include 

a variety of approaches, such as 

installing low water crossings, 

increasing culvert size, installing a relief 

culvert, and many others. Facilities that 

are already located in the Special Flood 

Hazard Area (SFHAs) or 0.2 percent 

annual chance floodplain for critical 

actions must take resilience measures 


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128See 44 CFR 60.3. See also Floodproofing, 

FEMA, available at: https://www.fema.gov/glossary/ 

floodproofing (last accessed July 12, 2023). 

129Projects outside of the 1 percent annual 

chance floodplain, but below the required level 

would need to be elevated to the required level. 

These projects require elevations of different levels, 

depending on the structure’s current elevation. 

FEMA assumed that half of the projects would need 

to be elevated 1-ft and the other half or projects 

would need to be elevated 2-ft. This assumption 

was made because FEMA is unsure of the actual 

number of projects that would need to be elevated 

by 1-ft or 2-ft and so assumed that it would be an 

even proportion for each height. IA projects are all 

considered non-critical actions and would not 

require a 3-ft level. 

130FEMA estimated that about 43.75 percent of 

the U.S. population lives in areas with no existing 

freeboard requirements, while 37.63 percent of the 

Continued 

under current regulations. Based on 

2012–2021 data, FEMA estimates that 

about 1,181 Category C projects, 131 

Category D projects, 254 Category F 

projects, and 446 Category G projects 

might be affected by the FFRMS each 

year. 

For PA Category E projects, if FVA 

were the only expansion option, FEMA 

estimates the proposed rule would affect 

1,090 projects over the first 10 years, 

which would result in a total cost of 

between $44.3 million and $53.2 

million, undiscounted, over the 60-year 

period of analysis. The costs are 

incurred in the first 10 years of the 60- 

year period because that is when the 

investment in those projects takes place. 

Accordingly, FEMA estimates average 

annual costs in years 1–10 would range 

between $3.9 million and $5.9 million. 

The average Federal cost share for PA 

projects from 2012–2021 was 80.7 

percent. Accordingly, FEMA estimates 

that it would cover 80.7 percent of the 

cost to elevate or floodproof PA projects, 

for a total of between $3.2 million and 

$3.7 million in additional grants per 

year for the first 10 years. Grant 

recipients would bear the remaining 

cost of between $0.9 million and $1.0 

million per year for the first 10 years. 

For PA Category E projects, if 0.2PFA 

were the only expansion option, FEMA 

estimates the proposed rule would affect 

840 projects over the first 10 years, 

which would result in a total cost of 

between $39.5 million and $46.0 

million, undiscounted, over the 60-year 

period of analysis. Because these costs 

are incurred in the first 10 years, FEMA 

estimates the average annual costs in 

years 1–10 would range between $3.2 

million and $3.6 million. Using the 

historical average 80.7 percent Federal 

cost share, FEMA estimated that it 

would cover 80.7 percent of the cost to 

elevate or floodproof PA projects, for a 

total of between $3.2 million and $3.7 

million in additional grants per year for 

the first 10 years. Grant recipients 

would bear the remaining cost 

approximately $0.8 million and $0.9 

million per year for the first 10 years. 

For PA Category E projects, if CISA 

were the only expansion option, FEMA 

estimates the proposed rule would affect 

1,173 projects over the first 10 years, 

which would result in a total cost of 

between $88.9 million and $101.8 

million, undiscounted, over the 60-year 

period of analysis. Because these costs 

are incurred in the first 10 years, FEMA 

estimates the average annual costs in 

years 1–10 would range between $8.9 

million and $10.2 million. Using the 

historical average 80.7 percent Federal 

cost share, FEMA estimated that it 

would cover 80.7 percent of the cost to 

elevate or floodproof PA projects, for a 

total of between $7.2 million and $8.2 

million in additional grants per year for 

the first 10 years. Grant recipients 

would bear the remaining cost of 

between $1.7 million and $2.0 million 

per year for the first 10 years. 

TABLE 8—SUMMARY OF FFRMS PA CATEGORY E PROJECT COSTS AND DISTRIBUTIONAL IMPACTS BY APPROACH

FVA 0.2PFA CISA 

Low Estimate: 

Annual cost (Years 1–10) ............................................................................................................. $3,990,396 $3,153,882 $8,887,014 

FEMA’s portion (grants from FEMA to recipients) ....................................................................... 3,220,250 2,545,183 7,171,820 

Recipients’ portion ........................................................................................................................ 770,150 608,700 1,715,190 

High Estimate: 

Annual cost (Years 1–10) ............................................................................................................. 4,594,514 3,590,760 10,179,589 

FEMA’s portion (grants from FEMA to recipients) ....................................................................... 3,707,773 2,897,743 8,214,928 

Recipients’ portion ............................................................................................................................... 886,740 693,020 1,964,660 

Unquantified: Increased resiliency standard for structures that would affect an estimated 1,181 Category C projects, 131 Category D projects,

254 Category F projects, and 446 Category G projects per year. 

IA Projects 

IA grants are provided to individuals 

who, as a direct result of a disaster, have 

necessary expenses and serious needs 

that they are unable to meet through 

other means. IA is divided into housing 

assistance and other needs assistance. 

Other Needs Assistance under IA 

provides a financial assistance for 

medical, dental, childcare, funeral, 

personal property, transportation, or 

other necessary expenses or serious 

needs. Under Housing Assistance, 

FEMA may provide temporary housing 

assistance (financial assistance or direct 

assistance in the form of temporary 

housing units); a capped amount of 

financial assistance for the repair or 

replacement of disaster-damaged private 

residences; and, in rare circumstances, 

financial or direct assistance to 

construct permanent or semi-permanent 

housing. 

The financial caps on housing repair 

or replacement assistance means IA 

grants generally do not fund new 

construction or substantial 

improvements. However, there are two 

types that would be affected by this 

proposed rule: IA Permanent Housing 

Construction (PHC) projects and sales 

and disposal of temporary housing units 

(THUs). PHC is Federal assistance that 

FEMA provides under IA for the 

purpose of constructing permanent 

housing where alternative housing 

resources are unavailable or scarce. IA 

also includes the sale and disposal of 

THUs, such as mobile housing units and 

recreational vehicles, and THUs located 

in the FFRMS floodplain would be 

subject to the requirements of this rule. 

FEMA regulations prohibit the 

floodproofing of residential structures at 

or below the BFE: elevation is the only 

option.128 FEMA calculated the cost of 

elevating PHC structures, depending on 

FFRMS approach and location and type 

of project.129 FEMA subtracted certain 

costs that it determined to be part of the 

baseline. Specifically, numerous States 

and Localities have existing freeboard 

requirements that would result in 

elevation costs and benefits regardless 

of this rule, so costs and benefits for 

these areas were reduced based on 

existing requirements.130


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U.S. population lives in area with a 1-ft freeboard 

requirement and 12.87 percent lives with a 2-ft 

requirement. A further 5.25 percent of the 

population is subject to a 3-foot existing freeboard 

requirement and 0.50 percent to a 4-foot 

requirement. 

131For analysis purposes, FEMA calculated the 

expanded floodplain using the mid-point +5-ft 

CISA by expanding the floodplain by 26 percent. 

FEMA opted for the mid-point level for CISA 

because this is the best approach with available 

data. Please see further explanation in the 

appropriate CISA sections: 6.4.3, 6.5.3, and 6.6.3. 

132FEMA’s HMA program requires the use of the 

American Society of Civil Engineers Standard 

(ASCE) 24 that establishes minimum requirements 

for flood-related design and construction of 

structures that are located in whole or in part in 

flood hazard areas for structure elevation, 

mitigation reconstruction, and floodproofing 

projects for HMA. FEMA was unable to account for 

these additional baseline requirements since the 

database does not identify projects that were built 

to ASCE standards as this database was not 

designed for data analysis. Additionally, these 

standards are based on the flood zone where the 

project is located, and FEMA was unable to identify 

the flood zones where individual projects were 

located. Instead, FEMA measures the effects of this 

rule against the current requirements of 44 CFR part 

9. Accordingly, the estimated costs of compliance 

for HMA structures may be overstated. See FEMA 

Policy–203–074–1; issued April 21, 2014. https://

www.fema.gov/sites/default/files/2020-07/asce24- 

14_highlights_jan2015.pdf (last accessed July 12, 

2023). 

133To estimate the HMA costs to this section of 

the proposed rule, FEMA reviewed their HMA 

database to identify projects over a 10-year period 

(2010–2019) that would be subject to the FFRMS. 

FEMA was unable to obtain a 10-year of historical 

data from 2012–2021 for HMA due to changes 

within the program’s database. From 2010 to 2019, 

HMA used the Pre-Disaster Mitigation (PDM) grant 

program. Starting in 2020, HMA used the Building 

Resilient Infrastructure and Communities (BRIC) 

grant program. BRIC would only be able to provide 

limited data over the last 2 years of which would 

not be sufficient for this analysis. Additionally, 

PDM and BRIC databases are not compatible with 

each other. Therefore, FEMA analyzed the best 

available data from PDM for years between 2010– 

2019. 

For IA, if FVA were the only 

expansion option, FEMA estimates the 

proposed rule would affect 2,650 

structures over the first 10 years, which 

would result in a total cost of $511,822, 

undiscounted, over the 60-year period 

of analysis. The costs are incurred in the 

first 10 years of the 60-year period 

because that is when the investment in 

those projects takes place. Accordingly, 

FEMA estimates average annual costs of 

$51,182 in years 1–10. Since there is no 

cost share for IA, FEMA would fund the 

entire cost of elevating IA projects 

through grants. 

For IA, if 0.2PFA were the only 

expansion option, FEMA estimates the 

proposed rule would affect 2,650 

structures over the first 10 years, which 

would result in a total cost of $511,822, 

undiscounted, over the 60-year period 

of analysis. Because these costs are 

incurred in the first 10 years of the 

analysis, FEMA estimates the average 

annual cost in years 1–10 is $51,182. 

Since there is no cost share for IA, 

FEMA would fund the entire cost of 

elevating IA projects through grants. 

For IA, if CISA were the only 

expansion option, FEMA estimates the 

proposed rule would affect 2,903 

projects over the first 10 years, which 

would result in a total cost of 

$1,421,690, undiscounted, over the 60- 

year period of analysis.131 Because these 

costs are incurred in the first 10 years 

of the analysis, FEMA estimates the 

average annual cost in years 1–10 is 

$142,169. Since there is no cost share 

for IA, FEMA would fund the entire cost 

of elevating IA projects through grants. 

TABLE 9—SUMMARY OF FFRMS IA PROJECT COSTS AND DISTRIBUTIONAL IMPACTS BY APPROACH

FVA 0.2PFA CISA 

Annual cost (Years 1–10) ............................................................................................................ $51,182 $51,182 $142,169 

FEMA’s portion (grants from FEMA to recipients) ............................................................... 51,182 51,182 142,169 

Recipients’ portion ................................................................................................................ 0 0 0 

HMA Projects 

FEMA provides HMA grants to States, 

territories, Federally-recognized Tribes, 

and local communities for the 

implementation of hazard mitigation 

measures to increase resiliency to 

disasters. HMA projects relating to flood 

mitigation mainly include elevation of 

structures, floodproofing of 

structures,132 and acquisition of 

properties that are at a high risk of 

damage from flooding. HMA also funds 

various other types of projects, such as 

minor flood control, property 

acquisition, and generators, but FEMA 

was unable to estimate the potential 

costs associated with these projects 

because the manner in which each 

applicant meets the resiliency standards 

would be fact-specific and dependent 

upon the nature of the design and 

purpose of the project. Between 2010 

and 2019, FEMA funded a total of 841 

minor flood controls and generators 

projects, for an average of 84 such 

projects per year. Additional minor 

mitigation measures would have to be 

taken for these projects, if located in the 

expanded FFRMS floodplain. 

FEMA used data from HMA grant 

approvals for projects that include the 

elevation or floodproofing of structures 

from 2010–2019 and a multi-step 

process to estimate the range of costs for 

elevating or floodproofing these 

structures to the FFRMS.133

For HMA, if FVA were the only 

expansion option, FEMA estimates the 

proposed rule would affect 9,492 

structures over the first 10 years, which 

would result in a total cost of $21.6 

million, undiscounted, over the 60-year 

period of analysis. These costs are 

incurred in the first 10 years of the 60- 

year period because that is when the 

investment in those projects takes place. 

Accordingly, FEMA estimates average 

annual costs in years 1–10 of $2.2 

million. Using the 75 percent Federal 

cost share, FEMA estimated that it 

would cover 75 percent of the cost to 

elevate or floodproof HMA projects, for 

a total of $1.6 million in additional 

grants per year in years 1–10. Grant 

recipients would bear the remaining 

cost of $0.5 million per year. 

For HMA, if 0.2PFA were the only 

expansion option, FEMA estimates the 

proposed rule would affect 9,447 

structures in the first 10 years, which 

would result in a total cost of $21.3 

million, undiscounted, over the 60-year 

period of analysis. Because these costs 

are incurred in the first 10 years of the 

analysis, FEMA estimates the average 

annual cost in years 1–10 would be $2.1 

million. Using the 75 percent Federal 

cost share, FEMA estimated that it 

would cover 75 percent of the cost to 

elevate or floodproof HMA projects, for 

a total of $1.6 million in additional 

grants per year in years 1–10. Grant 

recipients would bear the remaining 

cost of $0.5 million per year. 

For HMA, if CISA were the only 

expansion option, FEMA estimates the 

proposed rule would affect 10,351 

structures over the first 10 years, which 

would result in a total cost of $48.1 

million, undiscounted, over the 60-year 

period of analysis. Because these costs 

are incurred in the first 10 years, FEMA 


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134FEMA focused its analysis on the projects 

impacted in the first 10 years after the rule’s 

publication. FEMA considered the resulting costs, 

benefits, and transfer payments of the proposed rule 

on those projects over a 50-year period, for a total 

of 60 years. The costs and transfers occur in the first 

10 years of the 60-year period because that is when 

the initial investment to elevate or floodproof them 

to meet the proposed requirements takes place. This 

is an upfront cost that occurs when the project is 

constructed. However, the benefits of the proposed 

rule are realized over the 50-year useful life of the 

affected structures. 

estimates the average annual cost in 

years 1–10 is $4.8 million. Using the 75 

percent Federal cost share, FEMA 

estimates that it would cover 75 percent 

of the cost to elevate or floodproof HMA 

projects, for a total of $3.6 million in 

additional grants per year. Grant 

recipients would bear the remaining 

cost of $1.2 million per year. 

TABLE 10—SUMMARY OF FFRMS HMA STRUCTURE PROJECT COSTS AND DISTRIBUTIONAL IMPACTS BY APPROACH

FVA 0.2PFA CISA 

Quantified Estimates: 

Annual cost (Years 1–10) ..................................................................................................... $2,157,881 $2,134,698 $4,810,196 

FEMA’s portion (grants from FEMA to recipients) ........................................................ 1,618,411 1,601,024 3,607,647 

Recipients’ portion ......................................................................................................... 539,470 533,675 1,202,549 

Unquantified: Increased resiliency standard for an estimated 84 minor flood controls and generators projects per year. 

Total Costs 

The proposed rule would increase 

costs for certain IA, PA, and HMA 

program projects, as well as result in 

administrative costs for FEMA. FEMA 

expects minimal effects on grants 

processed by FEMA’s GPD because 

these programs involve grants for 

preparedness activities and generally do 

not fund new construction or 

substantial improvement projects. 

Future FEMA facilities that may be 

located within the FFRMS floodplain 

would also be subject to the 

requirements of the proposed rule. 

FEMA was unable to quantify the cost 

for increased resiliency standards for 

the 20,961 facility projects estimated to 

be affected in the first 10 years after the 

rule’s publication. Additionally, FEMA 

was unable to quantify the cost for 

projects that may be diverted out of the 

floodplain, impacts to projects with 

existing basements, project delays, or 

forgone projects that may result from 

this rule. 

Using CISA as the primary approach, 

FEMA estimates that the proposed rule 

would affect 14,427 PA, IA, and HMA 

structures over the first 10 years, which 

would result in a total cost of between 

$142.1 million and $156.3 million, 

undiscounted, over the 60-year period 

of analysis. The costs are incurred in the 

first 10 years of the 60-year period 

because that is when the investment in 

those projects takes place.134

Discounted over 60 years, the low 

estimate cost would be between $121.3 

million and $100 million, using 3 and 

7 percent respectively, with a 60-year 

annualized cost of $4.4 million and $7.1 

million, using 3 and 7 percent 

respectively (see Table 11). Discounted 

over 60 years, the high estimate cost for 

would be between $133.4 million and 

$109.9 million, using 3 and 7 percent 

respectively, with a 60-year annualized 

cost of $4.8 million and $7.8 million, 

using 3 and 7 percent (see Table 12). 

Monetized costs include additional 

training for FEMA staff as well as the 

cost for the additional elevation or 

floodproofing. FEMA was unable to 

quantify the cost for increased resiliency 

standards for an estimated 20,961 

affected facility projects over the 10-year 

period of analysis. Additionally, FEMA 

was unable to quantify the cost for 

projects that may be diverted out of the 

floodplain, impacts to projects with 

existing basements, project delays, or 

forgone projects that may result from 

this rule. 

TABLE 11—PRIMARY APPROACH (CISA) ESTIMATED COSTS OVER THE 60-YEAR PERIOD OF ANALYSIS

[Low estimate, 2021$] 

Year 

FEMA 

admin 

costs 

Elevation and 

floodproofing 

costs 

Undiscounted 

annual costs 

Annual costs 

discounted 

at 3% 

Annual costs 

discounted 

at 7% 

1 ............................................................................................... $950,132 $13,839,379 $14,789,511 $14,358,748 $13,821,973 

2 ............................................................................................... 310,172 13,839,379 14,149,551 13,337,309 12,358,765 

3 ............................................................................................... 310,172 13,839,379 14,149,551 12,948,843 11,550,248 

4 ............................................................................................... 310,172 13,839,379 14,149,551 12,571,692 10,794,624 

5 ............................................................................................... 310,172 13,839,379 14,149,551 12,205,527 10,088,434 

6 ............................................................................................... 310,172 13,839,379 14,149,551 11,850,026 9,428,443 

7 ............................................................................................... 310,172 13,839,379 14,149,551 11,504,879 8,811,629 

8 ............................................................................................... 310,172 13,839,379 14,149,551 11,169,786 8,235,167 

9 ............................................................................................... 310,172 13,839,379 14,149,551 10,844,452 7,696,418 

10 ............................................................................................. 310,172 13,839,379 14,149,551 10,528,594 7,192,914 

11–60 * ..................................................................................... 0 0 0 0 0 

Total .................................................................................. 3,741,680 138,393,786 142,135,466 121,319,856 99,978,615 

Annualized ........................................................................ .................... ........................ ........................ 4,383,645 7,121,399 

* After year 10, the proposed rule would continue to impact FEMA projects funding new construction, substantial improvements or repairs to fix 

substantial damage, but FEMA chose to limit the analysis to 10 years of affected structures because FEMA believes the number of structures affected in this 10-year period is enough to provide a reasonable estimate of the costs, benefits, and transfers resulting from the proposed rule. 

Accordingly, FEMA’s analysis focuses on the 50-year impacts of the rule on projects that take place in the nearest 10-year period, for a total period of analysis spanning 60 years. 


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67908 Federal Register / Vol. 88, No. 189 / Monday, October 2, 2023 / Proposed Rules 

TABLE 12—PRIMARY APPROACH (CISA) ESTIMATED COSTS OVER THE 60-YEAR PERIOD OF ANALYSIS

[High estimate, 2021$] 

Year 

FEMA 

admin 

costs 

Elevation and 

floodproofing 

costs 

Undiscounted 

annual costs 

Annual costs 

discounted 

at 3% 

Annual costs 

discounted 

at 7% 

1 ............................................................................................... $1,070,207 $15,131,954 $16,202,161 $15,730,253 $15,142,206 

2 ............................................................................................... 430,247 15,131,954 15,562,201 14,668,867 13,592,629 

3 ............................................................................................... 430,247 15,131,954 15,562,201 14,241,618 12,703,391 

4 ............................................................................................... 430,247 15,131,954 15,562,201 13,826,814 11,872,328 

5 ............................................................................................... 430,247 15,131,954 15,562,201 13,424,091 11,095,634 

6 ............................................................................................... 430,247 15,131,954 15,562,201 13,033,098 10,369,751 

7 ............................................................................................... 430,247 15,131,954 15,562,201 12,653,493 9,691,356 

8 ............................................................................................... 430,247 15,131,954 15,562,201 12,284,945 9,057,342 

9 ............................................................................................... 430,247 15,131,954 15,562,201 11,927,131 8,464,806 

10 ............................................................................................. 430,247 15,131,954 15,562,201 11,579,739 7,911,034 

11–60 * ..................................................................................... 0 0 0 0 0 

Total .................................................................................. 4,942,430 151,319,537 156,261,967 133,370,049 109,900,477 

Annualized ........................................................................ .................... ........................ ........................ 4,819,054 7,828,126 

* After year 10, the proposed rule would continue to impact FEMA projects funding new construction, substantial improvements or repairs to fix 

substantial damage, but FEMA chose to limit the analysis to 10 years of affected structures because FEMA believes the number of structures affected in this 10-year period is enough to provide a reasonable estimate of the costs, benefits, and transfers resulting from the proposed rule. 

Accordingly, FEMA’s analysis focuses on the 50-year impacts of the rule on projects that take place in the nearest 10-year period, for a total period of analysis spanning 60 years. 

Total Transfer Payments 

Because the cost to implement the 

proposed mitigation measures would be 

shared between FEMA and grant 

recipients according to the statutory cost 

share, there are also important 

distributional impacts. The majority of 

elevation and floodproofing costs would 

be borne by FEMA through additional 

grants (a transfer from FEMA to grant 

recipients). Grant recipients would bear 

the remaining cost. The below section 

shows the additional transfers from 

FEMA to grant recipients. Using CISA as 

the primary approach, FEMA estimated 

that this proposed rule would affect 

14,427 structures in the first 10 years, 

which would result in an increase in 

transfer payments (i.e., grants) from 

FEMA to grant recipients, of between 

$109.2 million and $119.6 million, 

undiscounted, over the 60-year period 

of analysis. Discounted using 3 and 7 

percent respectively, FEMA’s low 

estimate of the increase in transfer 

payments is between $93.2 million and 

$76.7 million, with a 60-year annualized 

transfer between $3.4 million and $5.5 

million, at 3 and 7 percent respectively 

(see Table 13). Discounted using 3 and 

7 percent respectively, FEMA’s high 

estimate of the increase in transfer 

payments would be between $102.1 

million and $84.0 million, with a 60- 

year annualized transfer between $3.7 

million and $6.0 million, at 3 and 7 

percent respectively (see Table 14). 

TABLE 13—PRIMARY APPROACH (CISA) ESTIMATED TRANSFERS OVER THE 60-YEAR PERIOD OF ANALYSIS

[Low estimate, 2021$] 

Year 

Transfers from 

FEMA to 

recipients 

Total transfers 

discounted at 3% 

Total transfers 

discounted at 7% 

1 ................................................................................................................................. $10,921,636 $10,603,530 $10,207,136 

2 ................................................................................................................................. 10,921,636 10,294,689 9,539,380 

3 ................................................................................................................................. 10,921,636 9,994,844 8,915,308 

4 ................................................................................................................................. 10,921,636 9,703,732 8,332,064 

5 ................................................................................................................................. 10,921,636 9,421,099 7,786,975 

6 ................................................................................................................................. 10,921,636 9,146,698 7,277,547 

7 ................................................................................................................................. 10,921,636 8,880,289 6,801,446 

8 ................................................................................................................................. 10,921,636 8,621,640 6,356,492 

9 ................................................................................................................................. 10,921,636 8,370,524 5,940,646 

10 ............................................................................................................................... 10,921,636 8,126,723 5,552,006 

11–60 * ....................................................................................................................... 0 0 0 

Total .................................................................................................................... 109,216,359 93,163,768 76,709,000 

Annualized .......................................................................................................... .............................. 3,366,283 5,463,923 

* After year 10, the proposed rule would continue to impact FEMA projects funding new construction, substantial improvements or repairs to fix 

substantial damage, but FEMA chose to limit the analysis to 10 years of affected structures because FEMA believes the number of structures affected in this 10-year period is enough to provide a reasonable estimate of the costs, benefits, and transfers resulting from the proposed rule. 

Accordingly, FEMA’s analysis focuses on the 50-year impacts of the rule on projects that take place in the nearest 10-year period, for a total period of analysis spanning 60 years. 


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135This report is available on regulations.gov 

under Docket ID FEMA–2023–0026. 

136FEMA developed the BCA Toolkit to perform 

an analysis of cost-effectiveness of mitigation 

projects. The BCA Toolkit uses Office of 

Management and Budget cost-effectiveness 

guidelines and FEMA-approved methodologies and 

tools to complete a benefit-cost analysis. The tool 

can be found here: https://www.fema.gov/grants/ 

tools/benefit-cost-analysis#toolkit (last accessed 

July 12, 2023). 

137 2016 Evaluation of the Benefits of Freeboard 

for Public and Nonresidential Buildings in Coastal 

Areas. https://www.regulations.gov/document/ 

FEMA-2015-0006-0379 at page 7 (last accessed July 

12, 2023). 

TABLE 14—PRIMARY APPROACH (CISA) ESTIMATED TRANSFERS OVER THE 60-YEAR PERIOD OF ANALYSIS

[High estimate, 2021$] 

Year 

Transfers from 

FEMA to 

recipients 

Total transfers 

discounted at 3% 

Total transfers 

discounted at 7% 

1 ................................................................................................................................. $11,964,744 $11,616,256 $11,182,004 

2 ................................................................................................................................. 11,964,744 11,277,919 10,450,471 

3 ................................................................................................................................. 11,964,744 10,949,436 9,766,795 

4 ................................................................................................................................. 11,964,744 10,630,520 9,127,846 

5 ................................................................................................................................. 11,964,744 10,320,893 8,530,697 

6 ................................................................................................................................. 11,964,744 10,020,285 7,972,614 

7 ................................................................................................................................. 11,964,744 9,728,432 7,451,041 

8 ................................................................................................................................. 11,964,744 9,445,079 6,963,590 

9 ................................................................................................................................. 11,964,744 9,169,980 6,508,028 

10 ............................................................................................................................... 11,964,744 8,902,893 6,082,269 

11–60 * ....................................................................................................................... 0 0 0 

Total .................................................................................................................... 119,647,439 102,061,693 84,035,355 

Annualized .......................................................................................................... .............................. 3,687,791 5,985,773 

* After year 10, the proposed rule would continue to impact FEMA projects funding new construction, substantial improvements or repairs to fix 

substantial damage, but FEMA chose to limit the analysis to 10 years of affected structures because FEMA believes the number of structures affected in this 10-year period is enough to provide a reasonable estimate of the costs, benefits, and transfers resulting from the proposed rule. 

Accordingly, FEMA’s analysis focuses on the 50-year impacts of the rule on projects that take place in the nearest 10-year period, for a total period of analysis spanning 60 years. 

Total Benefits 

FEMA believes that the benefits of the 

proposed rule would justify the costs. 

FEMA has identified qualitative 

benefits, including the reduction in 

damage to properties and contents from 

future floods, potential lives saved, 

public health and safety benefits, 

reduced recovery time from floods, and 

increased community resilience to 

flooding. FEMA has also analyzed 

quantified benefits of one additional 

foot of freeboard for PA projects. 

FEMA believes this proposed rule 

would result in savings in time and 

money from a reduced recovery period 

after a flood and increased safety of 

individuals. Generally, if properties are 

protected, there would be less damage, 

resulting in less recovery time. In 

addition, higher elevations would help 

to protect people, leading to increased 

safety. FEMA is unable to quantify these 

benefits. 

In support of these benefits, FEMA 

uses the 2022 Benefits Analysis of 

Increased Freeboard for Public and 

Nonresidential Buildings in Riverine 

and Coastal Floodplains 135 (2022 

report), which analyzed potential 

benefits, such as reduction in damages, 

displacement, and loss of function, from 

increased flood protection requirements 

for public and nonresidential use 

buildings located in riverine and coastal 

SFHAs. This report’s scope included six 

construction methods in coastal and 

riverine areas: Elementary School 1- 

Story, Hospital 2–3 Stories, Police 

Station 2-Stories, Office Building 

(Business) 1-Story, Office Building 

(Business) 3-Story, and Office Building 

(Government office) 1-Story. The 

riverine analysis considered locations 

along 14 rivers, while the coastal 

analysis considered 12 different 

locations along a hypothetical coastal 

transect, and both only considered 

scenarios based on future conditions. 

Future conditions for the riverine 

analysis included two climate change 

scenarios: the Representative 

Concentration Pathways (RCP) 4.5 

scenario and 8.5 scenario, which 

represent medium and low efforts to 

curb emissions, respectively. The study 

used these two climate change scenarios 

to evaluate the amount of increase or 

decrease in riverine flood elevations 

over the next 50 years. For the coastal 

analysis, the study included the impact 

of various sea level rise conditions in 

areas with wave heights less than 1.5-ft 

(flood zone A) that are subject to coastal 

storm surge. The sea level rise 

conditions replicated a 2016 evaluation 

considering 8-, 20-, 39- and 59-inch sea 

level rise by 2100. FEMA evaluates 

benefits associated with the rule using 

both RCP 4.5 and 8.5 scenarios, and 

three of the four sea level rise 

conditions: 8-, 39-, and 59-inches. 

The 2022 report used FEMA’s BCA 

Toolkit to calculate benefits for each 

year between 2023 and 2072 and then 

used these projections to calculate the 

present value benefits for each 

scenario.136 The Toolkit used standard 

depth-damage functions (curves) to 

estimate damages from inundation and 

to calculate the benefits of mitigation, 

which included avoided physical 

damage, avoided displacement (costs 

incurred while staying in a temporary 

location following an event), and 

avoided loss of function (the economic 

impact to a community due to a lack of 

critical services). The study considered 

the potential avoided losses (or benefits) 

associated with either dry floodproofing 

or elevation of nonresidential and 

public use buildings.137 It compared 

existing freeboard requirements against 

one additional foot of freeboard; that is, 

the study evaluates the benefits of 

elevating or floodproofing to the BFE+2 

from a current assumed height of BFE+1 

for non-critical actions and to BFE+3 

from a current assumed height of BFE+2 

for critical actions. 

According to this report, for critical 

facilities in coastal SFHAs, such as 

police stations and hospitals, inclusion 

of one additional foot of freeboard will 

provide increased protection and 

continuity of operations and would 

result in a quantifiable benefit. Elevating 

buildings would help to maintain 

community resiliency further into the 

future. The riverine analysis indicated 

that despite the large variation in the 

flood data for the 14 sites, inclusion of 


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67910 Federal Register / Vol. 88, No. 189 / Monday, October 2, 2023 / Proposed Rules 

one additional foot of freeboard would 

result in quantifiable average benefits. 

Critical actions and schools had the 

highest benefits across various riverine 

locations. 

FEMA used this study to estimate the 

benefits of an additional foot of 

freeboard for non-residential PA 

projects. FEMA was unable to use the 

benefits study to estimate the benefits 

for HMA and IA projects since HMA 

data could not be broken out by 

building types and IA data were limited 

to residential-related projects. 

For FEMA’s primary estimate, FEMA 

used 59 inches of SLR due to it being 

the closest SLR option to CISA+5-ft. 

CISA is the preferred approach for 

FFRMS if the data are available. Since 

5 ft is equivalent to 60 inches (5 × 12 

inches per foot), 59-inch SLR would be 

the closest SLR option that FEMA has 

available to use for this portion of the 

analysis. If FEMA used CISA for all PA 

Category E projects that were subject to 

the FFRMS with the assumption that 

there would be a 59-inch SLR, FEMA 

estimated that the present value benefits 

of one additional foot of freeboard for 

the 50-year useful life of 1,173 PA 

Category E projects undertaken during 

the first 10 years after the rule’s 

publication would be between $55.2 

million and $62.0 million, 

undiscounted. The low estimate would 

range between $47.1 million and $38.8 

million, discounted at 3 and 7 percent 

respectively, with a 60-year annualized 

benefit of $1.7 million and $2.8 million, 

at 3 and 7 percent (See Table 15). The 

high estimate would range between 

$52.9 million and $43.5 million, 

discounted at 3 and 7 percent 

respectively, with a 60-year annualized 

benefit of $1.9 million and $3.1 million, 

at 3 and 7 percent. (See Table 16). 

In Tables 15 and 16 below, FEMA 

shows the number of projects 

constructed each year (column 2), the 

present value of the benefits as of the 

year in which they were constructed 

(column 3), and the present value of the 

benefits as of the beginning of Year 1 

using a 3 percent and 7 percent discount 

rate (columns 3 and 4, respectively). For 

example, the benefits shown in Year 1 

represent the present value of the 

benefits for the 117 Category E projects 

constructed in Year 1 over their 50-year 

useful life (i.e., in Years 1–50 of the 

analysis). The analysis does not account 

for any benefits for Year 1 projects after 

their 50-year useful life. The benefits 

shown in Year 10 represent the present 

value of the benefits for projects 

constructed in Year 10 over their 50- 

year useful life, (i.e., in Years 11–60 of 

the analysis). 

TABLE 15—PRIMARY APPROACH (CISA) ESTIMATED 50-YEAR BENEFITS FOR PA CATEGORY E PROJECTS UNDERTAKEN

DURING YEARS 1–10 

[Low estimate, 2021$] 

Year 

Number of PA 

Category E 

projects 

Total 50-year 

present value 

benefit for 

projects 

constructed in 

each year * 

Discounted 

3% 

Discounted 

7% 

1 ................................................................................................................. 117 $5,518,000 $5,357,282 $5,157,009 

2 ................................................................................................................. 117 5,518,000 5,201,244 4,819,635 

3 ................................................................................................................. 117 5,518,000 5,049,752 4,504,332 

4 ................................................................................................................. 117 5,518,000 4,902,672 4,209,656 

5 ................................................................................................................. 117 5,518,000 4,759,875 3,934,258 

6 ................................................................................................................. 117 5,518,000 4,621,238 3,676,876 

7 ................................................................................................................. 117 5,518,000 4,486,639 3,436,333 

8 ................................................................................................................. 117 5,518,000 4,355,960 3,211,526 

9 ................................................................................................................. 117 5,518,000 4,229,088 3,001,426 

10 ............................................................................................................... 117 5,518,000 4,105,910 2,805,071 

60-Year Total * .................................................................................... 1,173 .............................. 47,069,660 38,756,122 

Annualized ** ....................................................................................... ........................ .............................. 1,700,766 2,760,569 

* The benefits in this column represent the present value of the benefits for structures constructed in that year over their 50-year useful life, as 

of the year in which they were constructed. 

** The total benefits represent the total present value of benefits as of the beginning of Year 1. 

TABLE 16—PRIMARY APPROACH (CISA) ESTIMATED 50-YEAR BENEFITS FOR PA CATEGORY E PROJECTS UNDERTAKEN

DURING YEARS 1–10 

[High estimate, 2021$] 

Year 

Number of PA 

Category E 

projects 

Total 50-year 

present value 

benefit for 

projects 

constructed in 

each year * 

Discounted 

3% 

Discounted 

7% 

1 ................................................................................................................. 117 $6,198,572 $6,018,031 $5,793,058 

2 ................................................................................................................. 117 6,198,572 5,842,749 5,414,073 

3 ................................................................................................................. 117 6,198,572 5,672,571 5,059,881 

4 ................................................................................................................. 117 6,198,572 5,507,351 4,728,861 

5 ................................................................................................................. 117 6,198,572 5,346,943 4,419,496 

6 ................................................................................................................. 117 6,198,572 5,191,206 4,130,370 

7 ................................................................................................................. 117 6,198,572 5,040,006 3,860,159 

8 ................................................................................................................. 117 6,198,572 4,893,210 3,607,625 

9 ................................................................................................................. 117 6,198,572 4,750,689 3,371,612 


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Federal Register / Vol. 88, No. 189 / Monday, October 2, 2023 / Proposed Rules 67911 

TABLE 16—PRIMARY APPROACH (CISA) ESTIMATED 50-YEAR BENEFITS FOR PA CATEGORY E PROJECTS UNDERTAKEN

DURING YEARS 1–10—Continued 

[High estimate, 2021$] 

Year 

Number of PA 

Category E 

projects 

Total 50-year 

present value 

benefit for 

projects 

constructed in 

each year * 

Discounted 

3% 

Discounted 

7% 

10 ............................................................................................................... 117 6,198,572 4,612,320 3,151,040 

60-Year Total * .................................................................................... 1,173 .............................. 52,875,076 43,536,175 

Annualized ** ....................................................................................... ........................ .............................. 1,910,533 3,101,048 

* The benefits in this column represent the present value of the benefits for structures constructed in that year over their 50-year useful life, as 

of the year in which they were constructed. 

** Annualized over the 60-year period of analysis. 

For more in-depth review of these 

costs and benefits, please see the 

Regulatory Impact Analysis, which can 

be found in the docket for this 

rulemaking. 

B. Regulatory Flexibility Act 

This section considers the effects that 

this proposed rule would have on small 

entities as required by the Regulatory 

Flexibility Act (RFA, 5 U.S.C. 601 et 

seq., Pub. L. 96–354) as amended by the 

Small Business Regulatory Enforcement 

Fairness Act of 1996 (SBREFA). The 

RFA generally requires an agency to 

prepare a regulatory flexibility analysis 

of any rule subject to notice and 

comment rulemaking requirements 

under the Administrative Procedure Act 

or any other statute unless the agency 

certifies that the rule will not have a 

‘‘significant economic impact on a 

substantial number of small entities.’’ 5 

U.S.C. 605(b). Small entities include 

small businesses, small organizations, 

and small governmental jurisdictions. 

FEMA prepared an Initial Regulatory 

Flexibility Analysis (IRFA) for this 

proposed rule. This analysis is detailed 

in this section and represents FEMA’s 

assessment of the impacts of this 

proposed rule on small entities. Section 

1 outlines FEMA’s initial assessment of 

small entities that would be affected by 

the proposed regulations. Section 2 

presents FEMA’s analysis and 

summarizes the steps taken by FEMA to 

comply with the RFA. 

1. Initial Assessment of Small Entities 

Affected by the Proposed Regulations 

The proposed rule would affect FEMA 

grant recipients that receive Federal 

funds for new construction, substantial 

improvement to structures, or to address 

substantial damage to structures and 

facilities. Many of these grants are 

available to local governmental 

jurisdictions and non-profit 

organizations. FEMA does not provide 

grants to for-profit businesses. 

2. Analysis and Steps Taken To Comply 

With the Regulatory Flexibility Act 

The following IRFA addresses the 

following requirements of the RFA: 

(1) a description of the reasons why 

action by the agency is being 

considered; 

(2) a succinct statement of the 

objectives of, and legal basis for, the 

proposed rule; 

(3) a description of and, where 

feasible, an estimate of the number of 

small entities to which the proposed 

rule will apply; 

(4) a description of the projected 

reporting, recordkeeping, and other 

compliance requirements of the 

proposed rule, including an estimate of 

the classes of small entities which will 

be subject to the requirement and the 

type of professional skills necessary for 

preparation of the report or record; 

(5) an identification, to the extent 

practicable, of all relevant Federal rules 

which may duplicate, overlap, or 

conflict with the proposed rule; 

(6) a description of any significant 

alternatives to the proposed rule which 

accomplish the stated objectives of 

applicable statutes, and which minimize 

any significant economic impact of the 

proposed rule on small entities. 

Consistent with the stated objectives of 

applicable statutes, the analysis shall 

discuss significant alternatives such as: 

the establishment of differing 

compliance or reporting requirements or 

timetables that take into account the 

resources available to small entities; the 

clarification, consolidation, or 

simplification of compliance and 

reporting requirements under the rule 

for such small entities; the use of 

performance rather than design 

standards; and an exemption from 

coverage of the rule, or any part thereof, 

for such small entities. 

2.1 Description of the Reasons Why 

Action by the Agency Is Being 

Considered 

The President issued Executive Order 

11988 in 1977 in furtherance of the 

National Flood Insurance Act of 1968, 

as amended; the Flood Disaster 

Protection Act of 1973, as amended; and 

the National Environmental Policy Act 

of 1969 (NEPA). Executive Order 11988 

requires Federal agencies to avoid, to 

the extent possible, the long- and shortterm adverse impacts associated with 

the occupancy and modification of 

floodplains, where there is a practicable 

alternative. Executive Order 11988 

requires agencies to prepare 

implementing procedures in 

consultation with the Water Resources 

Council (WRC), FEMA, and the Council 

on Environmental Quality (CEQ). The 

WRC issued ‘‘Floodplain Management 

Guidelines’’ (1978 Guidelines or 

Implementing Guidelines), the 

authoritative interpretation of Executive 

Order 11988. 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. 

After Hurricane Sandy it became clear 

to the Federal Government that there 

should be a reevaluation of the current 

flood risk reduction standards. The 

President issued Executive Order 13632, 

which created the Federal Interagency 

Hurricane Sandy Rebuilding Task Force 

(Sandy Task Force). Pursuant to 

direction from Executive Order 13632 to 

remove obstacles to resilient rebuilding, 

the Sandy Task Force reevaluated the 1 

percent annual chance/100-year 

standard. In April 2013, the Sandy Task 

Force announced a new Federal flood 

risk reduction standard that required 

elevation or other floodproofing to onefoot above the best available and most 

recent base flood elevation and applied 


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138 In addition to the FEMA-administered grant 

programs discussed in this analysis (IA, PA, HMA, 

and programs administered by GPD), FEMA also 

provides flood insurance through the NFIP. FEMA 

does not apply 44 CFR part 9 to non-grant site 

specific actions under the NFIP. 

that standard to all investments in 

Sandy-affected communities. The Sandy 

Task Force called for all major Sandy 

rebuilding projects in Sandy-affected 

communities using Federal funding to 

be elevated or otherwise floodproofed 

according to this new flood risk 

reduction standard. 

In June 2013, the President issued a 

Climate Action Plan 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 ‘‘federallyfunded . . . projects’’ to ensure that 

‘‘projects funded with taxpayer dollars 

last as long as intended.’’ 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 States, Local, Tribal, Territorial 

(SLTT) 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 changing 

conditions, 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. 

On January 30, 2015, the President 

issued Executive Order 13690, which 

amended Executive Order 11988 and 

established a new flood risk 

management standard called the 

FFRMS. Executive Order 11988, as 

amended, 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). It 

required FEMA to publish 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. Finally, Executive 

Order 13690 required the WRC to issue 

final Guidelines to agencies on the 

implementation of Executive Order 

11988, as amended, consistent with the 

FFRMS. 

On February 5, 2015, FEMA, on 

behalf of the Mitigation Framework 

Leadership Group, published a Federal 

Register notice for a 60-day notice and 

comment period seeking comments on a 

draft of the Revised Guidelines. The 

final Revised Guidelines were issued on 

October 8, 2015. 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 FFRMS. 

On August 22, 2016, FEMA issued a 

Notice of Proposed Rulemaking, 

‘‘Updates to Floodplain Management 

and Protection of Wetlands Regulations 

To Implement Executive Order 13690 

and the Federal Flood Risk Management 

Standard.’’ On August 15, 2017, 

Executive Order 13807 revoked 

Executive Order 13690. On March 6, 

2018, FEMA withdrew its Notice of 

Proposed Rulemaking and proposed 

supplementary policy in light of the 

revocation of the Executive Order 

13690. FEMA wrote that it would 

continue to seek more effective ways in 

its programs to assess and reduce the 

risk of current and future flooding and 

increase community resilience. 

On May 25, 2021, Executive Order 

14030 subsequently revoked Executive 

Order 13807 and reinstated Executive 

Order 13690, thereby reestablishing the 

FFRMS. The E.O. also states that the 

Revised Guidelines issued in 2015 were 

never revoked and remain in effect. 

The FFRMS is a flexible framework to 

increase resilience against flooding and 

help preserve the natural and beneficial 

values of floodplains. Incorporating the 

FFRMS into FEMA regulations would 

ensure that FEMA expands flood risk 

management from the current base flood 

elevation to a higher vertical elevation 

and corresponding horizontal floodplain 

to address current and future flood risk 

and ensure that projects funded with 

taxpayer dollars last as long as intended. 

Several programs exist in order to assist 

with flood mitigation or recovery efforts 

after a flood.138 IA and PA are disaster 

relief programs and primarily provide 

assistance after a disaster. HMA Grants 

are provided in order to increase 

resilience to hazards, and these have 

been shown to be very effective. By 

requiring recipients of FEMA funding to 

consider an expanded floodplain and 

build a higher level of flood resilience 

into their projects, the rule would 

reduce the likelihood of further damage 

and help prevent the loss of life in 

future flooding events. This would 

compel public recipients of Federal 

funds to build to higher flood resiliency 

standards and avoid repetitive loss 

situations. 

2.2 Succinct Statement of the 

Objectives of, and Legal Basis for, the 

Proposed Rule 

FEMA is responsible for publishing 

information on floodplain areas and 

identifying special hazards. FEMA is 

also responsible for several grant 

programs that use Federal funds to 

assist in construction or reconstruction 

following a disaster, as well as grants for 

hazard mitigation and recovery. These 

grants can potentially be used for 

locations within a floodplain. 

To meet the requirements of section 

2(d) of Executive Order 11988, requiring 

agencies to issue or amend existing 

regulations and procedures to 

implement the Executive Order, FEMA 

promulgated regulations which are 

located at 44 CFR part 9. FEMA is 

revising 44 CFR part 9 to reflect the 

changes to Executive Order 11988 made 

via Executive Order 13690. 

The objective of the proposed rule is 

to revise the regulations for locating 

actions subject to the FFRMS in an 

expanded floodplain to reduce the risk 

of flooding to those projects. In 

addition, for actions that are determined 

to be ‘‘critical actions’’ as defined by the 

proposed rule, the proposed rule would 

impose more stringent elevation and 

resiliency requirements. This is 

necessary to protect actions where even 

a slight chance of flooding is too great. 

The rule would also require the use, 

where possible, of natural features and 

nature-based approaches when 

developing alternatives for 

consideration that would accomplish 

the same purpose as a considered 

action, but which have less potential to 

affect or be affected by the floodplain. 

Common examples of a nature-based 

approach would be replacing concrete 

drainage systems with natural drainage 

or covering an area with plants to absorb 

water and reduce runoff. 

2.3 Description of, and Where 

Feasible, an Estimate of the Number of 

Small Entities to Which the Proposed 

Rule Will Apply 

This rule would affect certain 

recipients of FEMA grants. These would 

primarily be PA and HMA grant 

recipients, which include States, Tribal 

governments, local governments, and 

certain non-profit organizations. The PA 


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139FEMA conducted a study in 2022 in regard to 

the FFRMS Horizontal Floodplain Expansion Data 

(also referred to as the ‘‘FFRMS Expansion Study’’). 

Further information can be found in Appendix A 

to the FFRMS Regulatory Impact Analysis, available 

on regulations.gov under Docket ID FEMA–2023– 

0026. 

140The cost of elevating an existing structure is 

significantly higher than the cost of retrofitting the 

structure to be floodproofed, so FEMA assumed that 

substantial improvement projects would elect to 

floodproof rather than elevate. 

141The population of PA Category E projects 

includes all ‘‘Public Buildings’’ grants from 2012– 

2021 that received substantial improvement 

floodproofing or new construction funding. Because 

of the large population, FEMA used Slovin’s 

formula and a 90 percent confidence interval to 

determine the sample size. Slovin’s formula: n = N/ 

(1+N*e∧2). Therefore, 1,172/(1 + 1,172 × 0.1∧2) = 92 

(rounded). 

142FEMA was unable to obtain 10-years of 

historical data from 2012–2021 for HMA due to 

changes within the program’s database and used the 

best available data for years 2010 through 2019 

instead. 

grant recipients would include 

Categories C, D, E, F, and G projects; 

however, FEMA is only able to provide 

reasonable estimates of the number of 

entities and costs associated with 

Categories E (public buildings) because 

Category E projects are for structures 

whereas projects funded under the 

remaining categories are for facilities. 

Facilities would not be required to 

floodproof or elevate but would instead 

need to be made resilient to the 

appropriate flood levels, which is highly 

project-specific nature and lack of data 

for such projects makes it exceedingly 

difficult to estimate costs. IA and GPD 

are not discussed in this analysis. IA 

provides grants directly to individuals, 

who are not small entities as defined in 

5 U.S.C. 601(6). FEMA finds that this 

rule would likely have no effect on GPD 

grants because GPD projects are not 

typically substantial improvement or 

new construction. 

FEMA has estimated that the FFRMS 

requirements would expand the 

floodplain between 5 percent and 43 

percent based on a study 139 conducted 

in 800 square miles of mapped flood 

zone areas. FEMA developed floodplain 

expansion estimates for two distinct 

areas of the country: coastal and 

riverine. The first estimate is for coastal 

areas where FEMA anticipates 

implementing the CISA approach using 

currently actionable sea level rise data. 

The second estimate is for the area that 

represents the rest of the country where 

the 0.2PFA or FVA approaches will 

likely be applied. A total of 400 square 

miles of mapped flood zones was used 

as the baseline estimate for each of the 

two areas of the country. FEMA selected 

40 random samples of the coastal and 

riverine areas since these are the areas 

where the FFRMS would apply, with 

various topography, with at least 10 

square miles in each sampled area. 

FEMA calculated the floodplain 

expansion in each sample at various 

levels of freeboard so that there was a 

total of 400 square miles of expansion 

information for each area. 

FEMA selected CISA as its primary 

approach to evaluate the impacts of this 

proposed rule. FEMA’s accompanying 

policy proposes use of CISA as the 

preferred approach because it is the 

only approach that would ensure 

projects are designed to meet current 

and future flood risks unique to the 

location and thus would ensure the best 

overall resilience, cost effectiveness, 

and equity. FEMA does not have data 

detailed enough to estimate the average 

CISA level within the United States for 

this analysis. For CISA, FEMA 

evaluated a range from 1 to 10 feet of 

freeboard based on anticipated 

interagency tools that are currently in 

development and are projected to apply 

CISA in those rounded amounts as 

‘‘climate-informed freeboard.’’ The 10- 

foot ceiling would account for the 

highest levels of anticipated sea level 

rise along the Gulf and Atlantic coasts. 

Depending on location, under CISA, 

some places may be required to elevate 

or floodproof to +1-ft above the 1 

percent annual chance plain while other 

places may be required to use +10-ft 

above the 1 percent annual chance 

plain. However, there is no data or 

research to know what the required 

levels are or how many structures 

would be subject to the requirements. 

For this analysis, FEMA calculated the 

expanded floodplain using the midpoint +5-ft freeboard level, which FEMA 

estimates expands the floodplain by 26 

percent, on average, in coastal areas. 

FEMA considered using the minimum 

and maximum levels as alternatives to 

the mid-point level, but the minimum 

and maximum would not reflect the 

impacts of the rule accurately. FEMA 

did not use the minimum level because 

it would reflect a large number of 

structures not elevated or floodproofed 

to a high enough standard, when in 

reality, the rule would require them to 

be subject to a higher standard. If FEMA 

modeled all structures at the minimum 

standard, the costs would be 

underestimated compared to the true 

impact of the rule. The benefits of 

protecting the structures from flood 

would also be underestimated because 

at the minimum level. many structures 

would be left vulnerable to devastating 

flood damage. Likewise, FEMA did not 

use the maximum level because it 

would reflect a large number of 

structures elevated or floodproofed to a 

standard too high compared to what the 

rule would require. If FEMA modeled 

all structures at the maximum standard, 

the costs would be overestimated 

compared to the true impact. The 

benefits of protecting the structures 

from flood could potentially be 

overestimated, as well, and not reflect 

the true impact of the rule. 

PA provides grants to States, Tribal 

governments, local governments and 

certain non-profit organizations for 

rebuilding, replacement, or repair of 

public and non-profit facilities damaged 

by disasters. Where such rebuilding, 

replacement or repair involves new 

construction, substantial improvement, 

and repair of substantial damage of 

structures in the expanded FFRMS 

floodplain, PA recipients would incur 

additional costs to comply with 

proposed elevation and floodproofing 

requirements. From 2012–2021, 930 

individual PA Category E grant 

recipients received FEMA funding for 

substantial improvement 

floodproofing 140 or new construction. 

Under the CISA approach, with the 26 

percent expansion of the floodplain, an 

additional 242 PA Category E projects 

(930 × 26 percent), for a total of 1,172 

(930 + 242) projects, would be located 

in the 1 percent annual chance 

floodplain or expanded FFRMS 

floodplain over the 10-year period. 

FEMA randomly sampled 92 projects.141

Of the 92 projects, 40 projects, or 43 

percent (40 ÷ 92), would meet the 

definition of small entities under the 

Regulatory Flexibility Act. 

HMA provides mitigation grants to 

States, Tribal governments, local 

governments, and certain non-profit 

organizations to, among other things, 

relocate property outside of the 

floodplain, or to elevate or floodproof 

structures to the flood level. FEMA 

proposes to apply the FFRMS to all 

actions subject to the FFRMS, and all 

structure elevation, mitigation 

reconstruction, and dry floodproofing 

projects. As noted in the Regulatory 

Evaluation, FEMA funded an average of 

about 84 HMA elevation, mitigation 

reconstruction, and floodproofing 

structure projects per year from 2010– 

2019.142 Unlike PA grants, the majority 

of HMA grants are for projects located 

in the floodplain, so for this analysis 

FEMA assumes that all HMA elevation, 

mitigation reconstruction and dry 

floodproofing projects are in the 

floodplain. FEMA cannot estimate what 

projects might be considered actions 

subject to the FFRMS in addition to 

structure elevation, mitigation 

reconstruction, and dry floodproofing 

projects because HMA data does not 

distinguish whether projects are 


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143The other project type related to flood 

mitigation is acquisition. Generally, acquisition 

projects are for open space purposes and restore the 

natural and beneficial functions of the floodplain. 

Property acquisitions that result in relocated 

structures would be subject to FFRMS elevation and 

floodproofing requirements if the structure is 

relocated within the FFRMS floodplain. HMA data 

does not break out relocation costs from acquisition 

costs, so FEMA is unable to estimate additional 

relocation expenses for acquisition projects. 

144 In FEMA’s dataset, HMA recipients only 

included project titles and not the name of the 

grantee. This prevented FEMA from determining if 

a grant recipient was a small entity. Since PA and 

HMA provide funding to similar entities (States, 

Tribal governments, local governments, and certain 

non-profit organizations) for disaster related 

activity, FEMA used the percentages of small entity 

grant recipients found in PA Category E as a proxy 

for HMA small entities. 

145Because of the large population, FEMA used 

Slovin’s formula and a 90 percent confidence 

interval to determine the sample size. Slovin’s 

formula: n = N/(1+N*e∧2). Therefore, 1,181/(1 + 

1,181 × 0.1∧2) = 92 (rounded). 

146Because of the large population, FEMA used 

Slovin’s formula and a 90 percent confidence 

interval to determine the sample size. Slovin’s 

formula: n = N/(1+N*e∧2). Therefore, 131/(1 + 131 

× 0.1∧2) = 57 (rounded). 

147Because of the large population, FEMA used 

Slovin’s formula and a 90 percent confidence 

interval to determine the sample size. Slovin’s 

formula: n = N/(1+N*e∧2). Therefore, 254/(1 + 254 

× 0.1∧2) = 72 (rounded). 

148Because of the large population, FEMA used 

Slovin’s formula and a 90 percent confidence 

interval to determine the sample size. Slovin’s 

formula: n = N/(1+N*e∧2). Therefore, 446/(1 + 446 

× 0.1∧2) = 82 (rounded). 

149Because of the large population, FEMA used 

Slovin’s formula and a 90 percent confidence 

interval to determine the sample size. Slovin’s 

formula: n = N/(1+N*e∧2). Therefore, 84/(1 + 84 × 

0.1∧2) = 46 (rounded). 

150According to historical HMA data, there have 

been an average of 63 elevation projects and only 

4 floodproofing projects per year. 

151FEMA, ‘‘2008 Supplement to the 2006 

Evaluation of the National Flood Insurance 

Program’s Building Standards’’ Table 3. (last 

accessed July 12, 2023). 

considered new construction, 

substantial improvement, or repairs to 

address substantial damage. However, 

structure elevation, mitigation 

reconstruction, and dry floodproofing 

are the primary HMA projects relating to 

flood mitigation.143

With the 26 percent expansion of the 

floodplain, an additional 22 HMA 

projects per year (84 × 26 percent), for 

a total of 106 (84 + 22) projects, would 

be located in the 1 percent annual 

chance floodplain or expanded FFRMS 

floodplain. Assuming 43 percent 144 of 

HMA grant recipients are small entities, 

approximately 46 small entities 

receiving HMA grants would be affected 

per year (106 projects × 43 percent). 

Facilities would not be required to 

floodproof or elevate but would instead 

need to be made resilient to the 

appropriate flood levels, which is highly 

project-specific nature and lack of data 

for such projects makes it exceedingly 

difficult to estimate costs. FEMA could 

not estimate the cost of this rule on 

small entities for facilities. However, 

FEMA conducted an analysis to 

estimate the number of small entities for 

affected facility projects based on 

historical data. 

In an average year, FFRMS would 

impact about 1,181 PA Category C 

facilities. Based on a random sample of 

92 projects,145 FEMA found that grant 

recipients for 71 of the projects, or 77.2 

percent (71 ÷ 92), were small entities 

that would meet the definition of small 

entities under the Regulatory Flexibility 

Act. 

In an average year, FFRMS would 

impact about 131 PA Category D 

facilities. Based on a random sample of 

57 projects,146 FEMA found that grant 

recipients for 38 of the projects, or 66.7 

percent (38 ÷ 57), were small entities 

that would meet the definition of small 

entities under the Regulatory Flexibility 

Act. 

In an average year, FFRMS would 

impact about 254 PA Category F 

facilities. Based on a random sample of 

72 projects,147 FEMA found that grant 

recipients for 52 of the projects, or 72.2 

percent (52 ÷ 72), were small entities 

that would meet the definition of small 

entities under the Regulatory Flexibility 

Act. 

In an average year, FFRMS would 

impact about 446 PA Category G 

facilities. Based on a random sample of 

82 projects,148 FEMA found that grant 

recipients for 38 of the projects, or 46.3 

percent (38 ÷ 82), were small entities 

that would meet the definition of small 

entities under the Regulatory Flexibility 

Act. 

In an average year, FFRMS would 

impact about 84 HMA grant recipients 

received FEMA funding per year for 

minor flood controls and generator 

projects. Based on a random sample of 

46 projects,149 FEMA found that grant 

recipients for 24 of the projects, or 52.1 

percent (24 ÷ 46), were small entities 

that would meet the definition of small 

entities under the Regulatory Flexibility 

Act. 

2.4 Description of the Projected 

Reporting, Recordkeeping, and Other 

Compliance Requirements of the 

Proposed Rule, Including an Estimate of 

the Classes of Small Entities Which Will 

Be Subject to the Requirement and the 

Type of Professional Skills Necessary 

for Preparation of the Report or Record 

FEMA will not be changing the 

application process for its grant 

programs. The majority of the costs for 

the increased elevation or floodproofing 

requirements of structures in the 

FFRMS floodplain would be funded by 

FEMA through several grant programs. 

Small entities, like all entities, would be 

subject to additional costs not covered 

by these grants for the floodproofing, 

elevation of structures, and flood 

resiliency measures required by the 

proposed rule. For the purposes of this 

analysis, and based on historical data, 

FEMA presents the costs such that all 

projects would choose to elevate 

because of the additional level of safety 

elevation provides over floodproofing 

and a historically higher number of 

HMA projects that involved elevation as 

opposed to floodproofing.150 FEMA uses 

an NFIP report to estimate the cost of 

the proposed elevation requirements.151

The report provides estimates for the 

cost of elevating structures as a 

percentage of total construction cost. 

The cost of elevating an existing 

structure is considerably higher than the 

cost of retrofitting the structure to be 

floodproofed. Floodproofing involves 

sealing off areas below the flood level so 

that water cannot enter or altering the 

use of these areas so that flood waters 

may pass through without causing 

serious damage. Non-residential 

structures, where elevation is not 

feasible, may be floodproofed rather 

than elevated. Additionally, 

floodproofing existing properties may be 

less costly than elevating an existing 

property. So, where a project may 

floodproof rather than elevate, costs 

may be lower for some projects than the 

costs presented here. However, for 

existing properties that choose to 

elevate rather than floodproof, costs 

may be higher for some projects than the 

costs presented here because the NFIP 

report cost estimates are for when 

freeboard is included in the design of a 

structure. New buildings would be 

evaluated for both dry floodproofing 

(preventing the intrusion of floodwaters 

into the building by using a system of 

waterproofing and shields) and 

elevation (constructing higher), while 

existing buildings would only be 

evaluated for dry floodproofing. FEMA 

requests comments on these 

assumptions. 

As established above, FEMA estimates 

this rule would impact 40 small entity 

PA Category E projects annually. Using 

CISA as the primary approach, FEMA 

estimates that the total cost for the 

elevation and floodproofing 

requirements of this proposed rule for 

all PA Category E projects would be 

between $8,887,014 ($88,870,138 ÷ 10 

years) and $10,179,589 ($101,795,889 ÷ 

10 years) annually for 117 (1,173 PA 

Total FFRMS action Category E projects 

÷ 10 years) projects annually. Therefore, 


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each project would cost between 

$75,957 ($8,887,014 ÷ 117 projects) and 

$87,005 ($10,179,589 ÷ 117 projects). 

There is an average of 40 small entity 

PA projects per year. Small entity 

projects would have a total average 

expected cost between $3,038,280 

($75,957 × 40 small entities PA projects) 

and $3,480,200 ($87,005 × 40 small 

entities PA projects) per year. The 

historical average cost share for PA 

Category E projects is 80.7 percent 

covered by FEMA and 19.3 percent 

covered by the recipients, with the 

majority of recipients receiving a 75 

percent or a 90 percent cost share, 

depending on the type of disaster 

declaration. FEMA estimates that, for 

PA Category E projects, each small 

entity would have an average expected 

cost (i.e., their portion of the cost share), 

of between $13,141 ($75,957 × 17.3 

percent) and $15,052 ($87,005 × 17.3 

percent) per project. 

As established above, FEMA estimates 

that this rule would affect 

approximately 43 small HMA grant 

recipients per year. Using CISA as the 

primary approach, FEMA estimates that 

the total 10-year cost for the elevation 

and floodproofing requirements of this 

proposed rule for HMA projects would 

be $4,810,196 ($48,101,958 ÷ 10 years) 

annually for 1,035 (10,351 HMA Total 

FFRMS action projects ÷ 10 years) 

projects annually. There is an average of 

43 small entities HMA projects per year. 

The average HMA project cost is $4,648 

($4,810,196 ÷ 1,035 HMA projects) per 

project. The cost-sharing arrangement 

for HMA is 75 percent Federal and 25 

percent recipient, so HMA recipients 

would be required to fund 25 percent of 

the costs to comply with the 

requirements of the proposed rule. Each 

small entity cost share would have an 

average expected cost is $1,162 ($4,648 

× 25 percent). 

Reporting and recordkeeping are not 

expected to change with the exception 

of minor changes to FEMA’s Mitigation 

Grant Program/e-Grants system. FEMA 

would still make the determination if a 

project would take place in an FFRMS 

floodplain. 

2.5 Identification, to the Extent 

Practicable, of Relevant Federal Rules 

Which May Duplicate, Overlap, or 

Conflict With the Proposed Rule 

Situations may arise where multiple 

Federal agencies are conducting, 

supporting (including funding), or 

permitting actions in the same 

geographic area as FEMA actions subject 

to the FFRMS. In order to address this 

possibility, Sec. H of FEMA’s policy 

will leverage the Unified Federal 

Review process. Because FEMA has a 

coordination process in place for these 

occasions, the rule does not conflict 

with or duplicate the rules of other 

Federal agencies. 

This rule proposes to modify existing 

FEMA regulations relating to 

compliance with Executive Order 

11988, Floodplain Management are 

being modified to comply with 

Executive Order 11988, as amended. 

2.6 Description of Any Significant 

Alternatives to the Proposed Rule 

Which Accomplish the Stated 

Objectives of Applicable Statutes, and 

Which Minimize Any Significant 

Economic Impact of the Proposed Rule 

on Small Entities 

The standards proposed in this rule 

represent FEMA’s efforts to implement 

Executive Order 11988, as amended, 

which establishes executive branchwide policy in this area. Executive 

Order 13690 establishes the FFRMS. 

The policies established in these EOs do 

not consider exempting small entities 

from all or part of the standard; the 

purpose of the FFRMS is to ensure that 

agencies expand management from the 

current base flood level to a higher 

vertical elevation and corresponding 

horizontal floodplain to address current 

and future flood risk and ensure that 

projects funded with taxpayer dollars 

last as long as intended. Accordingly, 

FEMA proposes that the rule apply to 

all affected FEMA projects, including 

small entities. 

As discussed previously, most of the 

cost of the mitigation standards required 

by this rule would be paid by FEMA in 

the form of additional PA, IA, or HMA 

grants. Cost sharing is required for most 

FEMA grant programs. For PA and 

HMA, affected small entities would be 

required to pay the recipient portion of 

the cost share, which is 25 percent in 

most cases. There are, however, some 

exceptions and cost shares can be 

waived or set at a different level by 

Congress. FEMA does not have the 

authority to adjust the cost share 

specifically for small entities. 

Executive Order 11988, as amended, 

allows several approaches to determine 

the FFRMS floodplain. Section F of this 

NPRM, FEMA’s Implementation of 

Executive Order 11988, as amended, 

and FFRMS, describes the FFRMS 

approaches allowed by Executive Order 

11988, as amended, and FEMA’s 

considerations when selecting between 

the FFRMS approaches. FEMA is 

proposing, in its accompanying policy, 

to use CISA as the preferred approach. 

FEMA has chosen CISA as its preferred 

approach because it is the only one that 

uses the best available climate science 

to ensure projects are designed to meet 

current and future flood risks unique to 

the location and thus ensures the best 

overall resilience, cost effectiveness, 

and equity. Accordingly, FEMA believes 

its preferred approach will minimize the 

risk that affected small entities incur 

more costs than necessary because of 

overprotection or incur preventable 

costs from future damage because of 

under protection. 

Small entities affected by the 

proposed rule, as with any entity 

affected by the rule, would have the 

option to relocate outside of the 

floodplain. This may be preferable in 

cases where property can be obtained 

and new facilities built for less cost than 

elevating or floodproofing to the FFRMS 

level in the floodplain, and the recipient 

has the ability to relocate. 

FEMA requests public comment on 

alternatives to the proposed rule that it 

may not have considered, which 

accomplish the stated objectives of 

applicable statutes, and which minimize 

any significant economic impact of the 

rule on small entities. FEMA also 

invites all interested parties to submit 

data and information regarding the 

potential economic impact on small 

entities from adoption of this proposed 

rule. FEMA will consider all comments 

received in the public comment process. 

C. Unfunded Mandates Reform Act 

Pursuant to Section 201 of the 

Unfunded Mandates Reform Act of 1995 

(Pub. L. 104–4, 2 U.S.C. 1531), each 

Federal agency shall, unless otherwise 

prohibited by law, assess the effects of 

Federal regulatory actions on State, 

local, and Tribal governments, and the 

private sector (other than to the extent 

that such regulations incorporate 

requirements specifically set forth in 

law). Section 202 of the Unfunded 

Mandates Reform Act of 1995 (2 U.S.C. 

1532) further requires that before 

promulgating any general notice of 

proposed rulemaking that is likely to 

result in the promulgation of any rule 

that includes any Federal mandate that 

may result in expenditure by State, 

local, and Tribal governments, in the 

aggregate, or by the private sector, of 

$100 million or more (adjusted annually 

for inflation) in any 1 year, and before 

promulgating any final rule for which a 

general notice of proposed rulemaking 

was published, the agency shall prepare 

a written statement detailing the effect 

on State, local, and Tribal governments 

and the private sector. The proposed 

rule would not result in such an 

expenditure, and thus preparation of 

such a statement is not required. 


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D. National Environmental Policy Act 

(NEPA) of 1969 

Section 102 of the National 

Environmental Policy Act of 1969 

(NEPA), Public Law 91–190, 83 Stat. 

852 (Jan. 1, 1970) (42 U.S.C. 4321 et 

seq.) requires Federal agencies to 

evaluate the impact of a proposed major 

Federal action significantly affecting the 

human environment, consider 

alternatives to the proposed action, 

provide public notice and opportunity 

for comment, and properly document its 

analysis. 40 CFR parts 1501, 1502, 

1506.6. DHS and its component 

agencies analyze proposed actions to 

determine whether NEPA applies and, if 

so, what level of analysis and 

documentation is required. 40 CFR 

1501.3. DHS Directive 023–01, Rev. 01 

and DHS Instruction Manual 023–01– 

001–01, Rev. 01 (Instruction Manual) 

establish the policies and procedures 

DHS and its component agencies use to 

comply with NEPA and the Council on 

Environmental Quality (CEQ) 

regulations for implementing the 

procedural requirements of NEPA 

codified in 40 CFR parts 1500 through 

1508. The CEQ regulations allow 

Federal agencies to establish—in their 

NEPA implementing procedures with 

CEQ review and concurrence— 

categories of actions (‘‘categorical 

exclusions’’) that normally do not have 

a significant effect on the human 

environment. Therefore, these 

categorically excluded actions do not 

require preparation of an environmental 

assessment or environmental impact 

statement. 40 CFR 1501.4, 

1507.3(e)(2)(ii), 1508.1(d). The 

Instruction Manual, Appendix A, lists 

the DHS categorical exclusions. Under 

DHS NEPA implementing procedures, 

for an action to be categorically 

excluded it must satisfy each of the 

following conditions: (1) the entire 

action clearly fits within one or more of 

the categorical exclusions; (2) the action 

is not a piece of a larger action; and (3) 

no extraordinary circumstances exist 

that create the potential for a significant 

environmental effect. 

The proposed rule would update the 

Floodplain Management and Protection 

of Wetland requirements to adopt the 

approaches outlined in E.O. 11988, as 

amended. This involves establishing the 

floodplain, using the vertical elevation 

and corresponding horizontal extent, in 

the 8-step decision making process 

FEMA follows in applying E.O. 11988 to 

its actions. FEMA proposes to amend 

regulations codified at 44 CFR part 9 to 

revise the definition of the floodplain 

based on the approaches in E.O. 11988, 

as amended, consisting of the ClimateInformed Science Approach, the 

freeboard value approach, the 0.2 

percent annual chance flood approach, 

and any other method identified in 

updates. The proposed rule allows 

FEMA to select and prioritize among 

these approaches. The rule revises the 8- 

step decision making process to 

incorporate consideration of the 

approaches in determining if the project 

is in the floodplain. The rule would also 

add a requirement, where possible, to 

use natural systems, ecosystem 

processes, and nature-based approaches 

in the development of alternatives for 

Federal actions in a floodplain. The 

result of redefining the floodplain and 

applying the approaches outlined in 

Executive Order 11988, as amended, 

may be that structures determined to be 

in the floodplain (‘‘the FFRMS 

floodplain’’) would be elevated or 

floodproofed to a higher level, and more 

structures—due to the corresponding 

horizontal expansion of the floodplain— 

might be subject to an elevation 

requirement and/or other mitigation 

measures. Further, with the expanded 

horizontal floodplain, and application 

of the 8-step decision making process 

which allows for Federal actions in the 

floodplain only if there is no practicable 

alternative, it is possible some 

structures that otherwise would be 

constructed in a high-risk flood area, 

would be constructed elsewhere. This 

would result in better protection of 

people and their property, the 

floodplain and environment. When 

placing the action in the floodplain 

cannot be avoided, implementing 

mitigation measures to structures in the 

FFRMS floodplain will not only 

promote public safety and lessen flood 

risk, but may also reduce the impact of 

the action on the floodplain, and 

thereby contribute to preserving the 

natural and beneficial values of the 

floodplain per the mandate in E.O. 

11988. Similarly, the requirement to use 

natural systems, ecosystem processes, 

and nature-based approaches, where 

possible, in alternatives to the proposed 

action would contribute to restoring and 

preserving the natural and beneficial 

values of the floodplain. 

FEMA has determined that NEPA 

applies to the proposed rule because it 

fits the definition of a ‘‘major federal 

action.’’ CEQ’s NEPA regulations define 

‘‘major federal action’’ to include ‘‘new 

or revised agency rules,’’ regulations 

and policies. 40 CFR 1508.1(q)(2). The 

proposed rule, involving revision of the 

regulations at 44 CFR part 9, and 

accompanying new policy, constitute a 

‘‘major federal action.’’ 

FEMA analyzed the proposed rule 

and finds that it meets the three DHS 

criteria for a categorical exclusion. 

FEMA has determined that consistent 

with the first criterion, the rule clearly 

fits within the categorical exclusion 

found at A3 in the DHS Instruction 

Manual, Appendix A. Categorical 

exclusion A3 states that ‘‘promulgation 

of rules, issuance of rulings or 

interpretations, and the development 

and publications of policies’’ may be 

categorically excluded if such actions 

‘‘interpret or amend an existing 

regulation without changing its 

environmental effect.’’ Instruction 

Manual, Appendix A, A3(d). The 

proposed rule may result in requiring a 

structure to have either higher elevation 

or floodproofing, or more resilient 

design. The rule, however, does not 

change the environmental impacts 

because the modifications do not 

expand the footprint of the structure. It 

is possible the expanded horizontal 

floodplain may discourage placing a 

‘‘federal action’’ in the floodplain as 

under the 8-step decision making 

process, a structure may be located in 

the floodplain only if there is no 

practicable alternative. In the event 

there is a practicable alternative, and 

new construction is consequently 

located outside the floodplain, the effect 

of the proposed rule would be to benefit 

the environment by contributing to 

restoring and preserving the values of 

the floodplain as well as enhancing 

public safety. 

If the Federal action must be located 

in the FFRMS floodplain, that is, there 

no practicable alternative, it will be 

subject to one of the three approaches or 

a combination of them. FEMA’s 

preferred approach is CISA. If the CISA 

approach is used, it could result in an 

estimated average of 5 feet of additional 

elevation for a structure (or 

floodproofing to that level). FEMA 

prefers the CISA approach because it 

perceives that using the best actionable 

and available climate informed science 

to determine the floodplain is the most 

effective way to make the structure 

resilient. If CISA is not available, the 

proposed rule provides alternatives for 

determining the floodplain for critical 

actions and non-critical actions: for noncritical actions, the lesser of the 

freeboard value approach (2 or 3 feet 

above base flood elevation) or the .2 

percent annual flood; and for critical 

actions, the higher of the freeboard 

value approach or .2 percent annual 

flood. Given CISA or the combination of 

approaches may be used, the potential 

for the change in elevation (or 

floodproofing) levels varies. Further, if 

communities have stricter standards, 

which they are required to apply, the 


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communities will still apply that 

standard and thus application of the 

FFRMS would not require a change in 

elevation. If the ‘‘federal action’’ is 

substantial improvement or addresses 

substantial damage to a structure or 

facility, it would involve action in a prebuilt environment, with the only change 

being that the structure or facility might 

be elevated or floodproofed to the 

appropriate higher level. If design rather 

than elevation or in addition to 

elevation is used to comply with the 

FFRMS resilience standard, it is not 

anticipated to change the footprint of 

the structure or to significantly impact 

the environment. As part of 

implementing the FFRMS resilience 

standard, nature-based solutions are 

required in alternatives to the proposed 

action, where possible. When applied, 

they will benefit the environment by 

contributing to restoring and preserving 

the natural and beneficial values of the 

floodplain. 

None of the changes required by any 

of the combined FFRMS approaches are 

anticipated to change the environmental 

effects of application of the 8-step 

process. In addition to and apart from 

application of the decision process in 

this proposed rule, all Federal actions, 

new construction, substantial 

improvement, and actions addressing 

substantial damage, are subject to NEPA 

review and must comply with NEPA 

requirements. Each Federal action (or 

project) subject to the FFRMS will be 

evaluated on an individual basis under 

NEPA and related environmental laws, 

regulations, and executive orders. The 

Federal action will not be approved 

unless it meets all applicable 

environmental and historic preservation 

requirements. Further, the Federal 

actions subject to the proposed rule 

must comply with all applicable 

floodplain requirements. See 44 CFR 

9.11(d)(6) (referring to requirement to be 

consistent with the criteria of the 

National Flood Insurance Program at 44 

CFR part 59 et seq. or any more 

restrictive Federal, State, or local 

floodplain management standard). 

FEMA therefore concludes the 

proposed rule clearly fits within 

categorical exclusion A3. FEMA also 

finds the proposed rule meets the 

second and third DHS criteria for 

applying a categorical exclusion. The 

proposed rule is not a piece of a larger 

action as it will be implemented 

independently of other FEMA actions 

and is a separate action unto itself. 

Furthermore, FEMA finds that adopting 

the floodplain management and 

protection approaches outlined in E.O. 

11988 presents no extraordinary 

circumstances that increase the 

potential for significant environmental 

effects to the environment. Accordingly, 

the proposed rule is categorically 

excluded, and no further NEPA analysis 

or documentation is required. 

E. Paperwork Reduction Act (PRA) of 

1995 

As required by the Paperwork 

Reduction Act of 1995 (PRA), Public 

Law 104–13, 109 Stat. 163, (May 22, 

1995) (44 U.S.C. 3501 et seq.), FEMA 

may not conduct or sponsor, and a 

person is not required to respond to, a 

collection of information unless the 

collection of information displays a 

valid OMB control number. See 44 

U.S.C. 3506, 3507. This proposed 

rulemaking would call for no new 

collections of information under the 

PRA. This proposed rule includes 

information currently collected by 

FEMA and approved in OMB 

information collections 1660–0072 

(FEMA Mitigation Grant Programs) and 

1660–0076 (Hazard Mitigation Grant 

Program (HMGP) Application and 

Reporting). With respect to these 

collections, this proposed rulemaking 

would not impose any additional 

burden and would not require a change 

to the forms, the substance of the forms, 

or the number of recipients who would 

submit the forms to FEMA. 

F. Privacy Act 

Under the Privacy Act of 1974, 5 

U.S.C. 552a, an agency must determine 

whether implementation of a proposed 

regulation would result in a system of 

records. A ‘‘record’’ is any item, 

collection, or grouping of information 

about an individual that is maintained 

by an agency, including, but not limited 

to, his/her education, financial 

transactions, medical history, and 

criminal or employment history and 

that contains his/her name, or the 

identifying number, symbol, or other 

identifying particular assigned to the 

individual, such as a finger or voice 

print or a photograph. See 5 U.S.C. 

552a(a)(4). A ‘‘system of records’’ is a 

group of records under the control of an 

agency from which information is 

retrieved by the name of the individual 

or by some identifying number, symbol, 

or other identifying particular assigned 

to the individual. See 5 U.S.C. 

552a(a)(5). An agency cannot disclose 

any record, which is contained in a 

system of records, except by following 

specific procedures. 

In accordance with DHS policy, 

FEMA has completed a Privacy 

Threshold Analysis for this proposed 

rule. This rule is covered by the 

following PIAs: DHS/FEMA/PIA–006 

FEMA National Emergency Management 

Electronic Grants System, DHS/FEMA/ 

PIA–025-Hazard Mitigation Grant 

Program (HMGP) System, DHS/FEMA/ 

PIA–026 Operational Data Store and 

Enterprise Data Warehouse PIA, and 

DHS/FEMA/PIA–031 Authentication 

and Provisioning Services (APS). No 

updates to these PIAs are necessary. 

Further, this rule is covered under the 

following System of Records Notices 

(SORNs): DHS/FEMA–009 Hazard 

Mitigation, Disaster Public Assistance, 

and Disaster Loan Programs, 79 FR 

16015, Mar. 24, 2014; DHS/ALL–004 

General Information Technology Access 

Account Records System (GITAARS), 77 

FR 70792, Nov. 27, 2012; and DHS/ 

FEMA–008 Disaster Recovery 

Assistance Files. This proposed rule 

would not create a new system of 

records and no update to these SORNs 

are necessary. 

G. Executive Order 13175, Consultation 

and Coordination With Indian Tribal 

Governments 

Executive Order 13175, ‘‘Consultation 

and Coordination With Indian Tribal 

Governments,’’ 65 FR 67249, Nov. 9, 

2000, applies to agency regulations that 

have Tribal implications, that is, 

regulations that have substantial direct 

effects on one or more Indian Tribes, on 

the relationship between the Federal 

Government and Indian Tribes, or on 

the distribution of power and 

responsibilities between the Federal 

Government and Indian Tribes, or on 

the distribution of power and 

responsibilities between the Federal 

Government and Indian Tribes. Under 

this Executive Order, to the extent 

practicable and permitted by law, no 

agency shall promulgate any regulation 

that has Tribal implications, that 

imposes substantial direct compliance 

costs on Indian Tribal governments, and 

that is not required by statute, unless 

funds necessary to pay the direct costs 

incurred by the Indian Tribal 

government or the Tribe in complying 

with the regulations are provided by the 

Federal Government, or the agency 

consults with Tribal officials. 

FEMA has reviewed this proposed 

rule under Executive Order 13175 and 

has determined that this rule would not 

have a substantial direct effect on one or 

more Indian Tribes, on the relationship 

between the Federal Government and 

Indian Tribes, or on the distribution of 

power and responsibilities between the 

Federal Government and Indian Tribes. 

Part 9 applies to FEMA disaster and 

non-disaster assistance programs, 

including PA, Individual Assistance, 

HMA, and grants processed by GPD. 

Pursuant to section 8 of Executive Order 

11988, part 9 does not apply to 


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152 77 FR 74341, Dec. 14, 2012. 

153The 1978 Guidelines were the original 

interpretation of Executive Order 11988. 

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 Stafford Act, as amended (42 

U.S.C. 5170b and 5192). 

Indian Tribes have the same 

opportunity to participate in FEMA’s 

grant programs as other eligible 

participants, and participation is 

voluntary. The requirements of this rule 

do not affect Tribes differently than 

other grant recipients. Therefore, FEMA 

does not expect this proposed rule 

would have a substantial direct effect on 

one or more Indian Tribes or impose 

substantial direct compliance costs on 

Indian Tribal governments but will 

consider any information provided in 

comments to inform its analysis of this 

issue as part of a final rule. 

Notwithstanding FEMA’s conclusion 

that this proposed rule would not have 

tribal implications, FEMA recognizes 

the importance of engaging with Tribes 

with respect to the FFRMS. FEMA 

therefore summarizes below the 

extensive engagement process that 

precedes this rule, including significant 

engagement with Tribal leaders. As 

noted above, in the aftermath of 

Hurricane Sandy, the President issued 

Executive Order 13632,152 which 

created the Federal Interagency 

Hurricane Sandy Rebuilding Task Force 

(Sandy Task Force). This Task Force 

was chaired by the Secretary of HUD, 

who led the effort in coordination with 

multiple Federal partners, as well as an 

advisory group composed of State, local, 

and Tribal elected leaders. 

In June 2013, the President issued a 

Climate Action Plan that directed 

agencies to take the appropriate actions 

to reduce risk to Federal investments, 

specifically directing agencies to build 

on the work done by the Sandy Task 

Force and update their flood risk 

reduction standards for ‘‘federallyfunded projects’’ to ensure that 

‘‘projects funded with taxpayer dollars 

last as long as intended.’’ In November 

2013, the 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 across 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 that, in order to ensure 

resiliency, Federal agencies, when 

taking actions in and around 

floodplains, should include 

considerations of the effects of changing 

conditions, including sea level rise, 

more frequent and severe storms, and 

increasing river flood risks. 

Executive Order 11988, as amended, 

established the FFRMS. It also set forth 

a process by which additional input 

from stakeholders could be solicited and 

considered before agencies took any 

action to implement the FFRMS. It 

required FEMA to publish an updated 

draft version of the 1978 Guidelines 153

revised to incorporate the changes 

required by Executive Order 13690 and 

the FFRMS in the Federal Register for 

notice and comment. 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. 

FEMA, acting on behalf of the 

Mitigation Framework Leadership 

Group, published a Federal Register 

notice for a 60-day notice and comment 

period seeking comments on a draft of 

the Revised Guidelines, 80 FR 6530, 

Feb. 5, 2015. Additionally, on February 

27, 2015, FEMA, again acting on behalf 

of the Mitigation Framework Leadership 

Group, wrote to Tribal Leaders 

specifically asking for their comments 

regarding the Executive Order 

establishing the FFRMS. 

In response to multiple requests, the 

comment period was extended for an 

additional 30 days to end on May 6, 

2015. 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 the 

Guidelines. There were 9 public 

listening sessions across the country 

that were attended by over 700 

participants from State, local, and Tribal 

governments, and other stakeholder 

organizations to discuss the Guidelines. 

There were Tribal representatives at 

both the Ames, Iowa and Sacramento, 

California listening sessions; however, 

the specific Tribes that they were 

representing were not identified. Notice 

of these public listening sessions was 

posted in the Federal Register. 

The public comment period closed on 

May 6, 2015. Two Tribes submitted 

formal comments on the Guidelines 

during the Federal Register comment 

period. The WRC issued the Revised 

Guidelines on October 8, 2015, and the 

corresponding Notice published in the 

October 22, 2015 Federal Register at 80 

FR 64008. 

FEMA welcomes Tribal comments on 

all aspects of this proposed rule. 

H. Executive Order 13132, Federalism 

Executive Order 13132, ‘‘Federalism,’’ 

64 FR 43255, Aug. 10, 1999, sets forth 

principles and criteria that agencies 

must adhere to in formulating and 

implementing policies that have 

federalism implications, that is, 

regulations that have ‘‘substantial direct 

effects on the States, on the relationship 

between the national government and 

the States, or on the distribution of 

power and responsibilities among the 

various levels of government.’’ Federal 

agencies must closely examine the 

statutory authority supporting any 

action that would limit the 

policymaking discretion of the States, 

and to the extent practicable, must 

consult with State and local officials 

before implementing any such action. 

FEMA has reviewed this proposed 

rule under Executive Order 13132 and 

has determined that this rule would not 

have a substantial direct effect on the 

States, on the relationship between the 

national government and the States, or 

on the distribution of power and 

responsibilities among the various 

levels of government, and therefore does 

not have federalism implications as 

defined by the Executive Order. 

Part 9 applies to FEMA disaster and 

non-disaster assistance programs, 

including Public Assistance, Individual 

Assistance, HMA, and grants processed 

from GPD. 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 

section 403 and 502 of the Stafford Act, 

as amended (42 U.S.C. 5170b and 5192). 

The proposed rule does not significantly 

affect the rights, roles, and 

responsibilities of States, and involves 

no preemption of State law nor does it 

limit State policymaking discretion. 

I. Executive Order 12898, 

Environmental Justice; Executive Order 

14096, Revitalizing Our Nation’s 

Commitment to Environmental Justice 

for All 

Under Executive Order 12898, 

‘‘Federal Actions To Address 

Environmental Justice in Minority 

Populations and Low-Income 

Populations,’’ (59 FR 7629, Feb. 16, 

1994); and Executive Order 14096, 

‘‘Revitalizing Our Nation’s Commitment 

to Environmental Justice for All (88 FR 

25251, Apr. 26, 2023), FEMA 

incorporates environmental justice into 

its policies and programs. Executive 

Order 14096 charges agencies to make 

achieving environmental justice part of 

their missions consistent with statutory 


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154The White House, ‘‘President Obama’s Climate 

Action Plan, 2nd Anniversary Progress Report— 

Continuing to cut carbon, pollution, protect 

American communities, and lead internationally.’’ 

June 2015 found at https://

obamawhitehouse.archives.gov/sites/default/files/ 

docs/cap_progress_report_final_w_cover.pdf (last 

accessed July 12, 2023). 

authority by identifying, analyzing, and 

addressing disproportionate and adverse 

human health and environmental effects 

and hazards of Federal activities, 

including those related to climate 

change and cumulative impacts of 

environmental and other burdens on 

communities with environmental justice 

concerns. 

FEMA does not expect this rule to 

have a disproportionate and adverse 

human health or environmental effect 

on communities with environmental 

justice concerns but will consider any 

information provided in comments to 

inform its analysis of this issue as part 

of a final rule. 

J. Executive Order 12630, Taking of 

Private Property 

This rule will not effect a taking of 

private property or otherwise have 

taking implications under Executive 

Order 12630, ‘‘Governmental Actions 

and Interference With Constitutionally 

Protected Property Rights’’ (53 FR 8859, 

Mar. 18, 1988). 

K. Executive Order 12988, Civil Justice 

Reform 

This NPRM meets applicable 

standards in sections 3(a) and 3(b)(2) of 

Executive Order 12988, ‘‘Civil Justice 

Reform’’ (61 FR 4729, Feb. 7, 1996), to 

minimize litigation, eliminate 

ambiguity, and reduce burden. 

L. Executive Order 13045, Protection of 

Children From Environmental Health 

Risks and Safety Risks 

This NPRM will not create 

environmental health risks or safety 

risks for children under Executive Order 

13045, ‘‘Protection of Children From 

Environmental Health Risks and Safety 

Risks’’ (62 FR 19885, Apr. 23, 1997). 

M. Federal Participation in the 

Development and Use of Voluntary 

Consensus Standards and in Conformity 

Assessment Activities, OMB Circular A– 

119 

‘‘Voluntary consensus standards’’ are 

standards developed or adopted by 

voluntary consensus standards bodies, 

both domestic and international. These 

standards include provisions requiring 

that owners of relevant intellectual 

property have agreed to make that 

intellectual property available on a nondiscriminatory, royalty-free, or 

reasonable royalty basis to all interested 

parties. OMB Circular A–119 directs 

agencies to use voluntary consensus 

standards in their regulatory actions in 

lieu of government-unique standards 

except where inconsistent with law or 

otherwise impractical. The policies in 

the Circular are intended to reduce to a 

minimum the reliance by agencies on 

government-unique standards. 

Consistent with then-President 

Obama’s Climate Action Plan,154 the 

National Security Council staff 

coordinated an interagency effort to 

create a new flood risk reduction 

standard for Federally funded projects. 

The views of Governors, mayors, and 

other stakeholders were solicited and 

considered as efforts were made to 

establish a new flood risk reduction 

standard for Federally funded projects. 

The FFRMS is the result of these efforts. 

List of Subjects in 44 CFR Part 9 

Flood plains, Reporting and 

recordkeeping requirements. 

For the reasons discussed in the 

preamble, FEMA proposes to amend 44 

CFR part 9, as follows: 

PART 9—FLOODPLAIN MANAGEMENT 

AND PROTECTION OF WETLANDS 

■ 1. The authority citation for part 9 is 

revised to read as follows: 

Authority: 6 U.S.C. 101 et seq.; 42 U.S.C. 

4001 et seq.; 42 U.S.C. 4321 et seq.; E.O. 

11988 of May 24, 1977, 42 FR 26951, 3 CFR, 

1977 Comp., p. 117; E.O. 11990 of May 24, 

1977, 42 FR 26961, 3 CFR, 1977 Comp. p. 

121; E.O. 13690, 80 FR 6425; E.O. 14030, 86 

FR 27967. 

■ 2. Revise § 9.1 to read as follows: 

§ 9.1 Purpose. 

This part sets forth the policy, 

procedure, and responsibilities to 

implement and enforce relevant sections 

of the National Flood Insurance Act of 

1968, as amended, and the Flood 

Disaster Protection Act of 1973, as 

amended, 42 U.S.C. 4001 et seq., the 

National Environmental Policy Act of 

1969, 42 U.S.C. 4321 et seq., as 

amended, and other relevant statutory 

authorities in conjunction with 

Executive Order 11988, Floodplain 

Management, as amended, and 

Executive Order 11990, Protection of 

Wetlands. 

■ 3. Amend § 9.2 by revising paragraph 

(b) and adding paragraphs (c) and (d) to 

read as follows: 

§ 9.2 Policy. 

* * * * * 

(b) The Agency will provide 

leadership in floodplain management 

and the protection of wetlands, 

informed by the best available and 

actionable science, to bolster the 

resilience of communities and Federal 

assets against the impacts of flooding, 

which are anticipated to increase over 

time due to the effects of changing 

conditions which adversely affect the 

environment, economic prosperity, 

public health and safety, and national 

security. 

(c) The Agency shall integrate the 

goals of the Orders to the greatest 

possible degree into its procedures for 

implementing the National 

Environmental Policy Act (42 U.S.C. 

4321 et seq.). 

(d) The Agency shall: 

(1) Minimize the impact of floods on 

human health, safety, and welfare; 

(2) Avoid long- and short-term 

adverse impacts associated with the 

occupancy and modification of 

floodplains and the destruction and 

modification of wetlands; 

(3) Avoid direct and indirect support 

of floodplain development and new 

construction in wetlands wherever there 

is a practicable alternative; 

(4) Reduce the risk of flood loss; 

(5) Promote the use of nonstructural 

flood protection methods to reduce the 

risk of flood loss; 

(6) Minimize the destruction, loss, or 

degradation of wetlands; 

(7) Restore and preserve the natural 

and beneficial values served by 

floodplains; 

(8) Preserve and enhance the natural 

values of wetlands; 

(9) Involve the public throughout the 

floodplain management and wetlands 

protection decision-making process; 

(10) Adhere to the objectives of the 

Unified National Program for 

Floodplain Management; and 

(11) Improve and coordinate the 

Agency’s plans, programs, functions, 

and resources so that the Nation may 

attain the widest range of beneficial uses 

of the environment without degradation 

or risk to health and safety. 

■ 4. Amend § 9.3 by revising to read as 

follows: 

§ 9.3 Severability. 

Any provision of this part held to be 

invalid or unenforceable as applied to 

any action should be construed so as to 

continue to give the maximum effect to 

the provision permitted by law, unless 

such holding is that the provision of this 

part is invalid and unenforceable in all 

circumstances, in which event the 

provision should be severable from the 

remainder of this subpart and shall not 

affect the remainder thereof. 

■ 5. Amend § 9.4 by: 

■ a. Adding in alphanumeric order 

definitions for ‘‘0.2 Percent Annual 

Chance Flood Elevation,’’ ‘‘0.2 Percent 


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Annual Chance Floodplain,’’ ‘‘1 Percent 

Annual Chance Flood Elevation,’’ and 

‘‘1 Percent Annual Chance Floodplain;’’ 

■ b. Revising the definitions of ‘‘Action’’ 

and ‘‘Actions Affecting or Affected by 

Floodplains or Wetlands;’’ 

■ c. Adding the definition of ‘‘Action 

Subject to the Federal Flood Risk 

Management Standard;’’ 

■ d. Removing the definitions of ‘‘Base 

Flood’’ and ‘‘Base Floodplain;’’ 

■ e. Adding the definition of ‘‘Base 

Flood Elevation;’’ 

■ f. Revising the definitions of ‘‘Coastal 

High Hazard Area,’’ ‘‘Critical Action’’ 

and ‘‘Emergency Actions;’’ 

■ g. Adding in alphabetical order 

definitions for ‘‘Federal Flood Risk 

Management Standard (FFRMS),’’ 

‘‘Federal Flood Risk Management 

Standard Floodplain,’’ ‘‘Federally 

Funded Project,’’ and ‘‘FEMA 

Resilience;’’ 

■ h. Removing the definitions of ‘‘Five 

Hundred Year Floodplain’’ and ‘‘FIA;’’ 

■ i. Revising the definition of ‘‘Flood or 

Flooding;’’ 

■ j. Removing the definitions of ‘‘Flood 

Fringe,’’ ‘‘Flood Hazard Boundary Map 

(FHBM),’’ ‘‘Flood Insurance Rate Map 

(FIRM),’’ and ‘‘Flood Insurance Study;’’ 

■ k. Revising the definitions of 

‘‘Floodplain’’, ‘‘Functionally Dependent 

Use’’, and ‘‘Mitigation;’’ 

■ l. Removing the definition of 

‘‘Mitigation Directorate;’’ 

■ m. Adding in alphabetical order a 

definition for ‘‘National Security’’ and 

‘‘Nature-Based Approaches,’’ ‘‘Natural 

and Beneficial Values of Floodplains 

and Wetlands,’’ and ‘‘Natural Features;’’ 

■ n. Removing the definition of 

‘‘Natural Values of Floodplains and 

Wetlands;’’ 

■ o. Revising the definition of ‘‘New 

Construction;’’ 

■ p. Removing the definition of ‘‘New 

Construction in Wetlands;’’ 

■ q. Revising the definitions of 

‘‘Orders’’, ‘‘Practicable’’, and 

‘‘Regulatory Floodway’’, ‘‘Restore’’, 

‘‘Structures’’, and ‘‘Substantial 

Improvement;’’ 

■ r. Adding the definition of ‘‘Support 

of Floodplain and Wetland 

Development;’’ 

■ s. Removing the definition of 

‘‘Support;’’ and 

■ t. Revising the definition of 

‘‘Wetlands.’’ 

The additions and revisions read as 

follows: 

§ 9.4 Definitions. 

0.2 Percent Annual Chance Flood 

Elevation means the elevation to which 

floodwater is anticipated to rise during 

the 0.2 percent annual chance flood 

(also known as the 500-year flood). 

0.2 Percent Annual Chance 

Floodplain means the area subject to 

flooding by the 0.2 percent annual 

chance flood (also known as the 500- 

year floodplain). 

1 Percent Annual Chance Flood 

Elevation—see Base Flood Elevation. 

1 Percent Annual Chance Floodplain 

means the area subject to flooding by 

the 1 percent annual chance flood (also 

known as the 100-year floodplain or 

base floodplain). 

Action means 

(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. 

Actions Affecting or Affected by 

Floodplains or Wetlands means actions 

which have the potential to result in the 

long- or short-term impacts associated 

with: 

(1) The occupancy or modification of 

floodplains, and the direct or indirect 

support of floodplain development, or 

(2) The destruction and modification 

of wetlands and the direct or indirect 

support of new construction in 

wetlands. 

Action Subject to the Federal Flood 

Risk Management Standard (FFRMS) 

means any action where FEMA funds 

are used for new construction, 

substantial improvement, or to address 

substantial damage to a structure or 

facility. 

* * * * * 

Base Flood Elevation means the 

elevation to which floodwater is 

anticipated to rise during the 1 percent 

annual chance flood (also known as the 

base flood or 100-year flood). The terms 

‘‘base flood elevation,’’ ‘‘1 percent 

annual change flood elevation,’’ and 

‘‘100-year flood elevation’’ are 

synonymous and are used 

interchangeably. 

Coastal High Hazard Area means an 

area of flood hazard extending from 

offshore to the inland limit of a primary 

frontal dune along an open coast and 

any other area subject to high velocity 

wave action from storms or seismic 

sources. 

Critical Action means any action for 

which even a slight chance of flooding 

is too great. Critical actions include, but 

are not limited to, those which create or 

extend the useful life of structures or 

facilities: 

(1) Such as those which produce, use 

or store highly volatile, flammable, 

explosive, toxic or water-reactive 

materials; 

(2) Such as hospitals and nursing 

homes, and housing for the elderly, 

which are likely to contain occupants 

who may not be sufficiently mobile to 

avoid the loss of life or injury during 

flood and storm events; 

(3) Such as emergency operation 

centers, or data storage centers which 

contain records or services that may 

become lost or inoperative during flood 

and storm events; and 

(4) Such as generating plants, and 

other principal points of utility lines. 

* * * * * 

Emergency Actions means emergency 

work essential to save lives and protect 

property and public health and safety 

performed under sections 403 and 502 

of the Robert T. Stafford Disaster Relief 

and Emergency Assistance Act of 1988 

(42 U.S.C. 5170b and 5192). 

* * * * * 

Federal Flood Risk Management 

Standard (FFRMS) means the Federal 

flood risk management standard to be 

incorporated into existing processes 

used to implement Executive Order 

11988, as amended. 

Federal Flood Risk Management 

Standard (FFRMS) Floodplain means 

the floodplain established using one of 

the approaches described in § 9.7(c) of 

this part. 

Federally Funded Project—see Action 

Subject to the Federal Flood Risk 

Management Standard. 

FEMA Resilience means the 

organization within FEMA that includes 

the Federal Insurance and Mitigation 

Administration, the Grants Program 

Directorate, and the National 

Preparedness Directorate. 

* * * * * 

Flood or flooding means the general 

and temporary condition of partial or 

complete inundation of normally dry 

land areas from the overflow of inland 

and/or tidal waters, and/or the unusual 

and rapid accumulation of runoff of 

surface waters from any source. 0.2 

Percent Annual Chance Flood means 

the flood which has a 0.2 percent 

chance of being equaled or exceeded in 

any given year (also known as the 500- 

year flood). 1 Percent Annual Chance 

Flood means the flood which has a 1 

percent chance of being equaled or 

exceeded in any given year (also known 

as the 100-year flood or base flood). The 

terms ‘‘base flood,’’ ‘‘1 percent annual 

chance flood,’’ and ‘‘100-year flood’’ are 

synonymous and are used 

interchangeably. 

* * * * * 

Floodplain means any land area that 

is subject to flooding. The term 


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‘‘floodplain,’’ by itself, refers to 

geographic features with undefined 

boundaries. For the purposes of this 

part, the FFRMS floodplain shall be 

established using one of the approaches 

described in § 9.7(c) of this part. See 0.2 

Percent Annual Chance Floodplain, 1 

Percent Annual Chance Floodplain, and 

Federal Flood Risk Management 

Standard Floodplain. 

* * * * * 

Functionally Dependent Use means a 

use which cannot perform its intended 

purpose unless it is located or carried 

out in close proximity to water. 

* * * * * 

Mitigation means steps necessary to 

minimize the potentially adverse effects 

of the proposed action, and to restore 

and preserve the natural and beneficial 

floodplain values and to preserve and 

enhance natural values of wetlands. 

* * * * * 

National Security means a condition 

that is provided by either (1) a military 

or defense advantage over any foreign 

nation or group of nations; (2) a 

favorable foreign relations position; or 

(3) a defense posture capable of 

successfully resisting hostile or 

destructive action from within or 

without, overt or covert. National 

security encompasses both national 

defense and foreign relations of the 

United States. 

Nature-Based Approaches means 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. 

Natural and Beneficial Values of 

Floodplains and Wetlands means 

features or resources that provide 

environmental and societal benefits. 

Water and biological resources are often 

referred to as ‘‘natural functions of 

floodplains and wetlands.’’ These 

values include, but are not limited to: 

(1) Water Resource Values (storing 

and conveying floodwaters, maintaining 

water quality, and groundwater 

recharge); 

(2) Living Resource Values (providing 

habitats and enhancing biodiversity for 

fish, wildlife, and plant resources); 

(3) Cultural Resource Values 

(providing open space, natural beauty, 

recreation, scientific study, historic and 

archaeological resources, and education; 

and 

(4) Cultivated Resource Values 

(creating rich soils for agriculture, 

aquaculture, and forestry). 

Natural Features means 

characteristics of a particular 

environment (e.g., barrier islands, sand 

dunes, wetlands) that are created by 

physical, geological, biological, and 

chemical processes and exist in 

dynamic equilibrium. Natural features 

are self-sustaining parts of the landscape 

that require little or no maintenance to 

continue providing their ecosystem 

services (functions). 

New Construction means the 

construction of a new structure or 

facility or the replacement of a structure 

or facility which has been totally 

destroyed. New construction includes 

permanent installation of temporary 

housing units. New construction in 

wetlands includes draining, dredging, 

channelizing, filling, diking, 

impounding, and related activities. 

* * * * * 

Orders means Executive Order 11988, 

Floodplain Management, as amended, 

and Executive Order 11990, Protection 

of Wetlands. 

Practicable means capable of being 

done within existing constraints. The 

test of what is practicable depends on 

the situation and includes consideration 

of all pertinent factors, such as natural 

environment, social concerns, economic 

aspects, legal constraints, and agency 

authorities. 

* * * * * 

Regulatory Floodway means the area 

regulated by Federal, State, or local 

requirements to provide for the 

discharge of the base flood so the 

cumulative rise in the water surface is 

no more than a designated amount 

above the base flood elevation. 

Restore means to reestablish a setting 

or environment in which the natural 

functions of the floodplain can operate. 

Structure means a walled and roofed 

building, including a temporary housing 

unit (manufactured housing) or a gas or 

liquid storage tank. 

Substantial Improvement means any 

repair, reconstruction or other 

improvement of a structure or facility, 

which has been damaged in excess of, 

or the cost of which equals or exceeds, 

50% of the pre-disaster market value of 

the structure or replacement cost of the 

facility (including all ‘‘public facilities’’ 

as defined in the Robert T. Stafford 

Disaster Relief and Emergency 

Assistance Act of 1988) (1) before the 

repair or improvement is started, or (2) 

if the structure or facility has been 

damaged and is proposed to be restored. 

Substantial improvement includes work 

to address substantial damage to a 

structure or facility. If a facility is an 

essential link in a larger system, the 

percentage of damage will be based on 

the cost of repairing the damaged 

facility relative to the replacement cost 

of the portion of the system which is 

operationally dependent on the facility. 

The term ‘‘substantial improvement’’ 

does not include any alteration of a 

structure or facility listed on the 

National Register of Historic Places or a 

State Inventory of Historic Places. 

* * * * * 

Support of Floodplain and Wetland 

Development means to, directly or 

indirectly, encourage, allow, serve, or 

otherwise facilitate development in 

floodplains or wetlands. Development 

means any man-made change to 

improved or unimproved real estate, 

including but not limited to new 

construction, mining, dredging, filling, 

grading, paving, excavation or drilling 

operations, or storage of equipment or 

materials. Direct support results from 

actions within floodplains or wetlands, 

and indirect support results from 

actions outside of floodplains or 

wetlands. 

Wetlands means those areas which 

are inundated or saturated by surface or 

ground water with a frequency 

sufficient to support, or that under 

normal hydrologic conditions does or 

would support, a prevalence of 

vegetation or aquatic life typically 

adapted for life in saturated or 

seasonally saturated soil conditions, 

including wetlands areas separated from 

their natural supply of water as a result 

of construction activities such as 

structural flood protection methods or 

solid-fill road beds, and activities such 

as mineral extraction and navigation 

improvements. Examples of wetlands 

include, but are not limited to, swamps, 

fresh and salt water marshes, estuaries, 

bogs, beaches, wet meadows, sloughs, 

potholes, mud flats, river overflows, and 

other similar areas. This definition is 

intended to be consistent with the 

definition utilized by the U.S. Fish and 

Wildlife Service. 

■ 6. Amend § 9.5 by revising paragraph 

(a)(3), the first sentence of paragraph 

(b)(1), and paragraphs (c) through (g) to 

read as follows: 

§ 9.5 Scope. 

(a) * * * 

(3) The amendments to this part made 

on [EFFECTIVE DATE OF FINAL RULE] 

apply to new actions for which 

assistance is made available pursuant to 

declarations under the Robert T. 

Stafford Disaster Relief and Emergency 

Assistance Act of 1988 on or after 

[EFFECTIVE DATE OF FINAL RULE] 

and new actions for which assistance is 


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made available pursuant to notices of 

funding opportunities published on or 

after [EFFECTIVE DATE OF FINAL 

RULE]. For ongoing actions for which 

assistance was made available prior to 

that date, legacy program regulations set 

forth in guidance and available at http:// 

www.fema.gov shall apply. 

(b) * * * 

(1) Executive Order 11990, Protection 

of Wetlands, contains a limited 

exemption not found in Executive Order 

11988, Floodplain Management, as 

amended. * * * 

* * * * * 

(c) Decision-making involving certain 

categories of actions. The provisions set 

forth in this part are not applicable to 

the actions enumerated in paragraphs 

(c)(1) through (10) of this section except 

that the Regional Administrators shall 

comply with the spirit of Executive 

Order 11988, as amended, and 

Executive Order 11990 to the extent 

practicable. For any action which is 

excluded from the actions enumerated 

below, the full 8-step process applies 

(see § 9.6) (except as indicated at 

paragraphs (d), (e), and (g) of this 

section regarding other categories of 

partial or total exclusion). The 

provisions of this part do not apply to 

the following (all references are to the 

Robert T. Stafford Disaster Relief and 

Emergency Assistance Act of 1988, Pub. 

L. 93–288, as amended, except as 

noted): 

(1) Assistance provided for emergency 

work essential to save lives and protect 

property and public health and safety 

performed pursuant to sections 403 and 

502; 

(2) Emergency Support Teams 

(section 303); 

(3) Emergency Communications 

(section 418); 

(4) Emergency Public Transportation 

(section 419); 

(5) Fire Management Assistance 

(section 420), except for hazard 

mitigation assistance under sections 404 

and 420(d); 

(6) Community Disaster Loans 

(section 417), except to the extent that 

the proceeds of the loan will be used for 

repair of facilities or structures or for 

construction of additional facilities or 

structures; 

(7) The following Federal Assistance 

to Individuals and Households Program 

(section 408) categories of assistance: 

(i) Financial assistance for temporary 

housing (section 408(c)(1)(A)); 

(ii) Lease and repair of rental units for 

temporary housing (section 

408(c)(1)(B)(ii)), except that Step 1 

(§ 9.7) shall be carried out; 

(iii) Repairs (section 408(c)(2)); 

(iv) Replacement (section 408(c)(3)); 

and 

(v) Financial assistance to address 

other needs (section 408(e)). 

(8) Debris clearance and removal 

(sections 403 and 502), except those 

grants involving non-emergency 

disposal of debris within a floodplain or 

wetland (section 407); 

(9) Actions under sections 406 and 

407 of less than $18,000. Such $18,000 

amount will be adjusted annually to 

reflect changes in the Consumer Price 

Index for All Urban Consumers 

published by the Department of Labor; 

(10) Placement of families in existing 

resources and Temporary Relocation 

Assistance provided to those families so 

placed under the Comprehensive 

Environmental Response, 

Compensation, and Liability Act of 

1980, Public Law 96–510. 

(d) Abbreviated decision-making 

process applying steps 1, 4, 5, and 8. 

The Regional Administrator shall apply 

steps 1, 4, 5, and 8 of the decisionmaking process (§§ 9.7, 9.10, and 9.11) 

to repairs under section 406 of the 

Robert T. Stafford Disaster Relief and 

Emergency Assistance Act of 1988, 

Public Law 93–288, as amended, 

between $18,000 and $91,000. Such 

$18,000 and $91,000 amounts will be 

adjusted annually to reflect changes in 

the Consumer Price Index for All Urban 

Consumers published by the 

Department of Labor. For any action 

which is excepted from the actions 

listed below (except as otherwise 

provided in § 9.5 regarding other 

categories of partial or total exclusion), 

the full 8-step process applies (See 

§ 9.6). The Regional Administrator may 

also require certain other portions of the 

decision-making process to be carried 

out for individual actions as is deemed 

necessary. Steps 1, 4, 5, and 8 of the 

decision-making process apply to 

actions under section 406 of the Stafford 

Act referenced above except for: 

(1) Actions in a floodway or coastal 

high hazard area; or 

(2) New construction, substantial 

improvement, or repairs to address 

substantial damage of structures or 

facilities; or 

(3) Facilities or structures which have 

previously sustained damage from 

flooding due to a major disaster or 

emergency or on which a flood 

insurance claim has been paid; or 

(4) Critical actions. 

(e) Abbreviated decision-making 

process applying steps 1, 2, 4, 5, and 8. 

The Regional Administrator shall apply 

steps 1, 2, 4, 5, and 8 of the decisionmaking process (§§ 9.7, 9.8, 9.10, and 

9.11, see § 9.6) to certain actions under 

Section 406 of the Robert T. Stafford 

Disaster Relief and Emergency 

Assistance Act of 1988, Public Law 93– 

288, as amended, provided in 

paragraphs (1) and (2) below. Steps 3 

and 6 (§ 9.9) shall be carried out except 

that alternative sites outside the 

floodplain or wetland need not be 

considered. After assessing impacts of 

the proposed action on the floodplain or 

wetlands and of the site on the proposed 

action, alternative actions to the 

proposed action, if any, and the ‘‘no 

action’’ alternative shall be considered. 

The Regional Administrator may also 

require certain other portions of the 

decision-making process to be carried 

out for individual actions as is deemed 

necessary. For any action which is 

excluded from the actions listed below 

(except as otherwise provided in § 9.5 

regarding other categories of partial or 

total exclusion), the full 8-step process 

applies (see § 9.6). The Regional 

Administrator shall apply steps 1, 2, 4, 

5, and 8 of the decision-making process 

(§§ 9.7, 9.8, 9.10, and 9.11, see § 9.6) to: 

(1) Replacement of building contents, 

materials, and equipment (section 406). 

(2) Repairs under section 406 to 

damaged facilities or structures, except 

any such action for which one or more 

of the following is applicable: 

(i) FEMA estimated cost of repairs is 

more than 50 percent of the estimated 

reconstruction cost of the entire facility 

or structure or is more than $364,000. 

Such $364,000 amount will be adjusted 

annually to reflect changes in the 

Consumer Price Index for All Urban 

Consumers published by the 

Department of Labor; or 

(ii) The action is located in a 

floodway or coastal high hazard area; or 

(iii) Facilities or structures which 

have previously sustained structural 

damage from flooding due to a major 

disaster or emergency or on which a 

flood insurance claim has been paid; or 

(iv) The action is a critical action. 

(f) Other categories of actions. Based 

upon the completion of the 8-step 

decision-making process (§ 9.6), the 

Regional Administrator may find that a 

specific category of actions either offers 

no potential for carrying out the 

purposes of the Orders and shall be 

treated as those actions listed in § 9.5(c), 

or has no practicable alternative sites 

and shall be treated as those actions 

listed in § 9.5(e), or has no practicable 

alternative actions or sites and shall be 

treated as those actions listed in § 9.5(d). 

This finding will be made in 

consultation with FEMA Resilience and 

the Council on Environmental Quality 

as provided in section 2(d) of Executive 

Order 11988, as amended. Public notice 

of each of these determinations shall 


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include publication in the Federal 

Register and a 30-day comment period. 

(g) The National Flood Insurance 

Program (NFIP). (1) FEMA Resilience 

shall apply the 8-step decision-making 

process to program-wide actions under 

the NFIP, including all regulations, 

procedures, and other issuances making 

or amending program policy, and the 

establishment of programmatic 

standards or criteria. FEMA Resilience 

shall not apply the 8-step decisionmaking process to the application of 

programmatic standards or criteria to 

specific situations. Thus, for example, 

FEMA Resilience would apply the 8- 

step process to a programmatic 

determination of categories of structures 

to be insured, but not to whether to 

insure each individual structure. 

(2) The provisions set forth in this 

part are not applicable to the actions 

enumerated below except that FEMA 

Resilience shall comply with the spirit 

of the Orders to the extent practicable: 

(i) The issuance of individual flood 

insurance policies and policy 

interpretations; 

(ii) The adjustment of claims made 

under the Standard Flood Insurance 

Policy; 

(iii) The hiring of independent 

contractors to assist in the 

implementation of the NFIP; 

(iv) The issuance of individual flood 

insurance maps, Map Information 

Facility map determinations, and map 

amendments; and 

(v) The conferring of eligibility for 

emergency or regular program (NFIP) 

benefits upon communities. 

■ 7. Revise § 9.6 to read as follows: 

§ 9.6 Decision-making process. 

(a) Purpose. This section sets out the 

floodplain management and wetlands 

protection decision-making process to 

be followed by the Agency in applying 

the Orders to its actions. The numbering 

of Steps 1 through 8 does not require 

that the steps be followed sequentially. 

As information is gathered through the 

decision-making process, and as 

additional information is needed, 

reevaluation of lower numbered steps 

may be necessary. 

(b) Decision-making process. Except 

as otherwise provided in § 9.5 regarding 

categories of partial or total exclusion 

when proposing an action, the Agency 

shall apply the 8-step decision-making 

process. FEMA shall: 

(1) Step 1. Determine whether the 

proposed action is located in a 

floodplain and/or a wetland as 

established by § 9.7; and whether it has 

the potential to affect or be affected by 

a floodplain or wetland (see § 9.7); 

(2) Step 2. Notify the public at the 

earliest possible time of the intent to 

carry out an action in a floodplain or 

wetland, and involve the affected and 

interested public in the decision-making 

process (see § 9.8); 

(3) Step 3. Identify and evaluate 

practicable alternatives to locating the 

proposed action in a floodplain or 

wetland (including alternative sites, 

actions, natural features, nature-based 

approaches, and the ‘‘no action’’ option) 

(see § 9.9). If a practicable alternative 

exists outside the floodplain or wetland 

FEMA must locate the action at the 

alternative site. 

(4) Step 4. Identify the potential direct 

and indirect impacts associated with the 

occupancy or modification of 

floodplains and wetlands and the 

potential direct and indirect support of 

floodplain and wetland development 

that could result from the proposed 

action (see § 9.10); 

(5) Step 5. Minimize the potential 

adverse impacts to or within floodplains 

and wetlands and minimize support of 

floodplain and wetland development 

identified under Step 4. Restore and 

preserve the natural and beneficial 

values served by floodplains, and 

preserve and enhance the natural and 

beneficial values served by wetlands. 

Integrate nature-based approaches 

where appropriate (see § 9.11); 

(6) Step 6. Reevaluate the proposed 

action to determine first, if it is still 

practicable in light of its exposure to 

flood hazards, the extent to which it 

will aggravate hazards to others, and its 

potential to disrupt floodplain and 

wetland values; and second, if 

alternatives preliminarily rejected at 

Step 3 are practicable in light of the 

information gained in Steps 4 and 5. 

FEMA shall not act in a floodplain or 

wetland unless it is the only practicable 

location (see § 9.9); 

(7) Step 7. Prepare and provide the 

public with a finding and public 

explanation of any final decision that 

the floodplain or wetland is the only 

practicable alternative (see § 9.12); and 

(8) Step 8. Review the implementation 

and post-implementation phases of the 

proposed action to ensure that the 

requirements stated in § 9.11 are fully 

implemented. Oversight responsibility 

shall be integrated into existing 

processes. 

■ 8. Amend § 9.7 by revising paragraphs 

(a), (b), (c), (d)(3) and (4) to read as 

follows: 

§ 9.7 Determination of proposed action’s 

location. 

(a) Purpose. This section establishes 

Agency procedures for determining 

whether any action as proposed is 

located in or affects a floodplain 

established in paragraph (c) of this 

section or a wetland. 

(b) Information needed. (1) The 

Agency shall obtain enough information 

so that it can fulfill the requirements in 

this part to: 

(i) Avoid Federal action in floodplain 

and wetland locations unless they are 

the only practicable alternatives; and 

(ii) Minimize harm to and within 

floodplains and wetlands. 

(2) In all cases, FEMA shall determine 

whether the proposed action is located 

in a floodplain or wetland. Information 

about the floodplain as established by 

§ 9.7(c) and the location of floodways 

and coastal high hazard areas may also 

be needed to comply with this part, 

especially § 9.11. 

(3) The following additional current 

and future flooding characteristics may 

be identified by the Regional 

Administrator as applicable: 

(i) Velocity of floodwater; 

(ii) Rate of rise of floodwater; 

(iii) Duration of flooding; 

(iv) Available warning and evacuation 

time and routes; 

(v) Special problems: 

(A) Levees; 

(B) Erosion; 

(C) Subsidence; 

(D) Sink holes; 

(E) Ice jams; 

(F) Debris load; 

(G) Pollutants; 

(H) Wave heights; 

(I) Groundwater flooding; 

(J) Mudflow. 

(vi) Any other applicable flooding 

characteristics. 

(c) Floodplain determination. In the 

absence of a finding to the contrary, 

FEMA will determine that a proposed 

action involving a facility or structure 

that has been flooded previously is in 

the floodplain. In determining if a 

proposed action is in the floodplain: 

(1) FEMA shall determine whether the 

action is an action subject to the FFRMS 

as defined in § 9.4. 

(i) If the action is an action subject to 

the FFRMS, FEMA shall establish the 

FFRMS floodplain area and associated 

flood elevation by using the process 

specified in (c)(3) of this section and 

one of the following approaches: 

(A) Climate-Informed Science 

Approach (CISA): Using a climateinformed science approach that uses 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; 


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(B) Freeboard Value Approach (FVA): 

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; 

(C) 0.2 Percent Annual Chance Flood 

Approach (0.2PFA): The 0.2 percent 

annual chance flood; or 

(D) Any other method identified in an 

update to the FFRMS. 

(ii) FEMA may select among and 

prioritize the approaches in paragraph 

(c)(1) by policy. 

(iii) FEMA may provide an exception 

to using the FFRMS floodplain and 

corresponding flood elevation for an 

action subject to the FFRMS and instead 

use the 1 percent annual chance (base) 

floodplain for non-critical actions or the 

0.2 percent annual chance floodplain for 

critical actions where the action is in 

the interest of national security, where 

the action is an emergency action, or 

where the action is a mission-critical 

requirement related to a national 

security interest or an emergency action. 

(2) If the action is not an action 

subject to the FFRMS as defined in 

§ 9.4, FEMA shall use, at a minimum: 

(i) The 1 percent annual chance (base) 

floodplain and flood elevation for noncritical actions; and 

(ii) The 0.2 percent annual chance 

floodplain and flood elevation for 

critical actions. 

(3) FEMA shall establish the 

floodplain and corresponding elevation 

using the best available information. 

The floodplain and corresponding 

elevation determined using the best 

available information must be at least as 

restrictive as FEMA’s regulatory 

determinations under the NFIP where 

such determinations are available. In 

obtaining the best available information, 

FEMA may consider other FEMA 

information as well as other available 

information, such as: 

(i) Department of Agriculture: Natural 

Resources Conservation Service, U.S. 

Forest Service; 

(ii) Department of Defense: U.S. Army 

Corps of Engineers; 

(iii) Department of Commerce: 

National Oceanic and Atmospheric 

Administration; 

(iv) Department of the Interior: Bureau 

of Land Management, Bureau of 

Reclamation, U.S. Fish and Wildlife 

Service, United States Geological 

Survey; 

(v) Tennessee Valley Authority; 

(vi) Department of Transportation; 

(vii) Environmental Protection 

Agency; 

(viii) General Services 

Administration; 

(ix) States and Regional Agencies; or 

(x) Local sources such as Floodplain 

Administrators, Regional Flood Control 

Districts, or Transportation 

Departments. 

(4) If the sources listed in paragraph 

(c)(3) of this section do not have or 

know of the information necessary to 

comply with the requirements in this 

part, the Regional Administrator may 

seek the services of a professional 

registered engineer. 

(5) If a decision involves an area or 

location within extensive Federal or 

state holdings or a headwater area and 

FEMA’s regulatory determinations 

under the National Flood Insurance 

Program are not available, the Regional 

Administrator shall seek information 

from the land administering agency 

before information and/or assistance is 

sought from the sources listed in 

paragraph (c)(3). 

(d) * * * 

(3) If the identified sources do not 

have adequate information upon which 

to base the determination, the Agency 

shall carry out an on-site analysis 

performed by a representative of the 

FWS or other qualified individual for 

wetlands characteristics based on the 

definition of a wetland in § 9.4. 

(4) If an action constitutes new 

construction and is in a wetland but not 

in a floodplain, the provisions of this 

part shall apply. If the action is not in 

a wetland, the Regional Administrator 

shall determine if the action has the 

potential to result in indirect impacts on 

wetlands. If so, all potential adverse 

impacts shall be minimized. For actions 

which are in a wetland and the 

floodplain, completion of the decisionmaking process is required. (See § 9.6). 

In such a case, the wetland will be 

considered as one of the natural and 

beneficial values of the floodplain. 

■ 9. Amend § 9.8 by revising paragraphs 

(a), (c)(1), the first sentence of paragraph 

(c)(2), the introductory text of paragraph 

(c)(3), paragraph (c)(3)(v), paragraphs 

(c)(4) and (5) to read as follows: 

§ 9.8 Public notice requirements. 

(a) Purpose. This section establishes 

the initial notice procedures to be 

followed when the Agency proposes any 

action in or affecting floodplains or 

wetlands. 

* * * * * 

(c) * * * 

(1) For an action for which an 

environmental impact statement is 

being prepared, the Notice of Intent to 

File an EIS constitutes the early public 

notice if it includes the information 

required under paragraph (c)(5) of this 

section. 

(2) For each action having national 

significance for which notice is being 

provided, the Agency at a minimum 

shall provide notice by publication in 

the Federal Register and shall provide 

notice by mail to national organizations 

reasonably expected to be interested in 

the action. * * * 

(3) The Agency shall determine 

whether it has provided appropriate 

notices, adequate comment periods, and 

whether to issue cumulative notices 

(paragraphs (c)(4), (6), and (7) of this 

section) based on factors which include, 

but are not limited to: 

* * * * * 

(v) Anticipated potential impact of the 

action. 

(4) For each action having primarily 

local importance for which notice is 

being provided, notice shall be made in 

accordance with the criteria under 

paragraph (c)(3) of this section, and 

shall include, as appropriate: 

(i) Notice through the internet or 

another comparable method. 

(ii) Notice to Indian tribes when 

effects may occur on reservations. 

(iii) Information required in the 

affected State’s public notice procedures 

for comparable actions. 

(iv) Publication in local newspapers. 

(v) Notice through other local media 

including newsletters. 

(vi) Notice to potential interested 

community organizations. 

(vii) Direct mailing to owners and 

occupants of nearby or affected 

property. 

(viii) Posting of notice on and off site 

in the area where the action is to be 

located. 

(ix) Public hearing. 

(5) The notice shall: 

(i) Describe the action, its purposes, 

and a statement of the intent to carry out 

an action affecting or affected by a 

floodplain or wetland; 

(ii) Based on the factors in paragraph 

(c)(3) of this section, include a map of 

the area and other identification of the 

floodplain and/or wetland areas which 

is of adequate scale and detail; 

alternatively, FEMA may state that such 

map is available for public inspection, 

including the location at which such 

map may be inspected and a telephone 

number to call for information or may 

provide a link to access the map online; 

(iii) Based on the factors in paragraph 

(c)(3) of this section, describe the type, 

extent, and degree of hazard involved 

and the floodplain or wetland values 

present; and 

(iv) Identify the responsible official or 

organization for implementing the 

proposed action, and from whom 

further information can be obtained. 

* * * * * 

■ 10. Amend § 9.9 by: 


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■ a. Revising paragraphs (a)(1), (b)(2), 

and (c)(1) through (4); 

■ b. Adding paragraph (c)(5); 

■ c. Revising paragraphs (d), (e)(1)(i), 

(e)(1)(iii), (e)(1)(iv); (e)(2) introductory 

text, (e)(3) introductory text, and (e)(4); 

■ d. Lifting the suspension of paragraph 

(e)(6) and removing the paragraph. 

The addition and revisions read as 

follows: 

§ 9.9 Analysis and reevaluation of 

practicable alternatives. 

(a) * * * 

(1) This section expands upon the 

directives set out in § 9.6 of this part in 

order to clarify and emphasize the 

requirements to avoid floodplains and 

wetlands unless there is no practicable 

alternative. 

* * * * * 

(b) * * * 

(2) 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 or wetlands. In developing 

the alternative actions, the Agency shall 

use, where possible, natural systems, 

ecosystem processes, and nature-based 

approaches; and 

* * * * * 

(c) * * * 

(1) Natural environment (including, 

but not limited to topography, habitat, 

hazards, when applicable); 

(2) Social concerns (including, but not 

limited to aesthetics, historical and 

cultural values, land patterns, when 

applicable); 

(3) Economic aspects (including, but 

not limited to costs of space, 

technology, construction, services, 

relocation, when applicable); 

(4) Legal constraints (including, but 

not limited to deeds and leases, when 

applicable); and 

(5) Agency authorities. 

(d) * * * 

(1) The Agency shall not locate the 

proposed action in the floodplain as 

established by § 9.7(c) or in a wetland if 

a practicable alternative exists outside 

the floodplain or wetland. 

(2) If no practicable alternative exists 

outside the floodplain or wetland, in 

order to carry out the action the 

floodplain or wetland must itself be a 

practicable location in light of the 

review required in this section. 

(e) * * * 

(1) * * * 

(i) The action is still practicable at a 

floodplain or wetland site, considering 

the flood risk and the ensuing 

disruption of natural values; 

* * * * * 

(iii) The scope of the action can be 

limited to increase the practicability of 

previously rejected non-floodplain or 

wetland sites and alternative actions; 

and 

(iv) Harm to or within the floodplain 

can be minimized using all practicable 

means. 

(2) Take no action in a floodplain 

unless the importance of the floodplain 

site clearly outweighs the requirements 

to: 

* * * * * 

(3) Take no action in a wetland unless 

the importance of the wetland site 

clearly outweighs the requirements to: 

* * * * * 

(4) In carrying out this balancing 

process, give the factors in paragraphs 

(e)(2) and (3) of this section great 

weight. 

* * * * * 

■ 11. Amend § 9.10 by revising 

paragraph (a), the second sentence of 

paragraph (b), (c) and (d) to read as 

follows: 

§ 9.10 Identify impacts of proposed 

actions. 

(a) This section ensures that the 

effects of proposed Agency actions are 

identified. 

(b) * * * Such identification of 

impacts shall be to the extent necessary 

to comply with the requirements of this 

part to avoid floodplain and wetland 

locations unless they are the only 

practicable alternatives to minimize 

harm to and within floodplains and 

wetlands. 

(c) This identification shall consider 

whether the proposed action will result 

in an increase in the useful life of any 

structure or facility in question, 

maintain the investment at risk and 

exposure of lives to the flood hazard or 

forego an opportunity to restore the 

natural and beneficial values served by 

floodplains or wetlands. 

(d) In the review of a proposed or 

alternative action, the Regional 

Administrator shall consider and 

evaluate: impacts associated with 

modification of wetlands and 

floodplains regardless of its location; 

additional impacts which may occur 

when certain types of actions may 

support subsequent action which have 

additional impacts of their own; adverse 

impacts of the proposed actions on lives 

and property and on natural and 

beneficial floodplain and wetland 

values; and the three categories of 

factors listed below: 

(1) Flood hazard-related factors. 

These include, but are not limited to, 

the factors listed in § 9.7(b)(3); 

(2) Natural values-related factors. 

These include, but are not limited to: 

water resource values, as in storing and 

conveying floodwaters, maintaining 

water quality, and groundwater 

recharge; living resource values, as in 

providing habitats and enhancing 

biodiversity for fish and wildlife and 

plant resources; cultural resource 

values, as in providing open space, 

natural beauty, recreation, scientific 

study, historical and archaeological 

resources, and education; and cultivated 

resource values, as in creating rich soils 

for agriculture, aquaculture, and 

forestry. 

(3) Factors relevant to a proposed 

action’s effects on the survival and 

quality of wetlands. These include, but 

are not limited to: Public health, safety, 

and welfare, including water supply, 

quality, recharge and discharge; 

pollution; flood and storm hazards; and 

sediment and erosion; maintenance of 

natural systems, including conservation 

and long term productivity of existing 

flora and fauna, species and habitat 

diversity and stability, hydrologic 

utility, fish, wildlife, timber, and food 

and fiber resources; and other uses of 

wetlands in the public interest, 

including recreational, scientific, and 

cultural uses. 

■ 12. Amend § 9.11 by: 

■ a. Revising paragraphs (a) and (c)(1); 

■ b. Revising the first sentence of 

paragraph (d) introductory text, the 

introductory text of paragraph (d)(1), 

paragraphs (d)(2), (3) and (4), the 

introductory text of paragraph (d)(5), 

and paragraph (d)(9); 

■ c. Lifting the suspension of paragraph 

(e)(4) and removing paragraph (e); and 

■ d. Redesignating paragraph (f) as 

paragraph (e) and revising newly 

redesignated paragraph (e). 

The revisions read as follows: 

§ 9.11 Mitigation. 

(a) Purpose. This section expands 

upon the directives set out in § 9.6 of 

this part and sets out the mitigative 

actions required if the preliminary 

determination is made to carry out an 

action that affects or is in a floodplain 

or wetland. 

* * * * * 

(c) * * * 

(1) Potential harm to lives and the 

investment from flooding based on flood 

elevations as established by § 9.7(c); 

* * * * * 

(d) Minimization Standards. The 

Agency shall apply, at a minimum, the 

following standards to its actions to 

comply with the requirements of 

paragraphs (b) and (c) of this section 

(except as provided in § 9.5(c), (d), and 

(g) regarding categories of partial or total 

exclusion). * * * 

(1) There shall be no new 

construction or substantial 


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improvement in a floodway and no new 

construction in a coastal high hazard 

area, except for: * * * 

(2) For a structure which is a 

functionally dependent use or which 

facilitates an open space use, the 

following applies: Any construction of a 

new or substantially improved structure 

in a coastal high hazard area must be 

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 

floodplain as established by § 9.7(c). 

The structure shall be anchored so as to 

withstand velocity waters and hurricane 

wave wash. 

(3) Elevation of structures. The 

following applies to elevation of 

structures: 

(i) There shall be no new construction 

or substantial improvement of structures 

unless the lowest floor of the structures 

(including basement) is at or above the 

elevation of the floodplain as 

established by § 9.7(c). 

(ii) If the subject structure is 

nonresidential, instead of elevating the 

structure, FEMA may approve the 

design of the structure and its attendant 

utility and sanitary facilities so that the 

structure is water tight below the flood 

elevation with walls substantially 

impermeable to the passage of water and 

with structural components having the 

capability of resisting hydrostatic and 

hydrodynamic loads and effects of 

buoyancy. 

(iii) The provisions of paragraphs 

(d)(3)(i) and (ii) of this section do not 

apply to the extent that FEMA 

Resilience has granted an exception 

under § 60.6(b) of this chapter, or the 

community has granted a variance 

which the Regional Administrator 

determines is consistent with § 60.6(a) 

of this chapter. In a community which 

does not have a FEMA regulatory 

product in effect, FEMA may approve a 

variance from the standards of 

paragraphs (d)(3)(i) and (ii) of this 

section, after compliance with the 

standards of § 60.6(a) of this chapter. 

(4) There shall be no encroachments, 

including but not limited to fill, new 

construction, substantial improvements 

of structures or facilities, or other 

development within a designated 

regulatory floodway that would result in 

any increase in flood elevation within 

the community during the occurrence of 

the 1 percent annual chance (base) flood 

discharge. Until a regulatory floodway is 

designated, no fill, new construction, 

substantial improvements, or other 

development shall be permitted within 

the 1 percent annual chance (base) 

floodplain unless it is demonstrated that 

the cumulative effect of the proposed 

development, when combined with all 

other existing and anticipated 

development, will not increase the 

water surface elevation of the 1 percent 

annual chance (base) flood more than 

the amount designated by the NFIP or 

the community, whichever is most 

restrictive. 

(5) Even if an action is a functionally 

dependent use or facilitates open space 

uses (under paragraph (d)(1) or (2) of 

this section) and does not increase flood 

heights (under paragraph (d)(4) of this 

section), such action may only be taken 

in a floodway or coastal high hazard 

area if: * * * 

* * * * * 

(9) In the replacement of building 

contents, materials and equipment, the 

Regional Administrator shall require as 

appropriate, flood proofing and/or 

elevation of the building and/or 

elimination of such future losses by 

relocation of those building contents, 

materials, and equipment outside or 

above the floodplain as established by 

§ 9.7(c). 

(e) Restore and preserve. (1) For any 

action taken by the Agency which 

affects the floodplain or wetland and 

which has resulted in, or will result in, 

harm to the floodplain or wetland, the 

Agency shall act to restore and preserve 

the natural and beneficial values served 

by floodplains and wetlands. 

(2) Where floodplain or wetland 

values have been degraded by the 

proposed action, the Agency shall 

identify, evaluate, and implement 

measures to restore the values. 

(3) If an action will result in harm to 

or within the floodplain or wetland, the 

Agency shall design or modify the 

action to preserve as much of the 

natural and beneficial floodplain and 

wetland values as is possible. 

■ 13. In § 9.12 amend paragraph (d) by: 

■ a. Designating the introductory text as 

paragraph (d)(1); 

■ b. Designating paragraphs (d)(1) 

through (6) as paragraphs (d)(1)(i) 

through (d)(1)(vi); 

■ c. Designate the undesignated text 

after newly designated paragraph 

(d)(1)(vi) as paragraph (d)(2) and revise 

newly designated paragraph (d)(2) to 

read as follows: 

§ 9.12 Final public notice. 

* * * * * 

(d) * * * 

(2) When a damaged structure or 

facility is already being repaired by the 

State or local government at the time of 

the project application, the 

requirements of Steps 2 and 7 (§§ 9.8 

and this 9.12) may be met by a single 

notice. Such notice shall contain all the 

information required by both sections. 

■ 14. Revise § 9.13 to read as follows: 

§ 9.13 Particular types of temporary 

housing. 

(a) This section sets forth the 

procedures whereby the Agency will 

provide certain specified types of 

temporary housing at a private, 

commercial, or group site. 

(b) Prior to providing the temporary 

housing described in paragraph (a) of 

this section, the Agency shall comply 

with the provisions of this section. For 

temporary housing not enumerated 

above, the full 8-step process (see § 9.6) 

applies. 

(c) The actions described in paragraph 

(a) of this section are subject to the 

following decision-making process: 

(1) The temporary housing action 

shall be evaluated in accordance with 

the provisions of § 9.7 to determine if it 

is in or affects the 1 percent annual 

chance (base) floodplain or wetland. 

(2) No temporary housing unit may be 

placed on a site in a floodway or coastal 

high hazard area. 

(3) An individual or family shall not 

be housed in the 1 percent annual 

chance (base) floodplain or wetland 

unless the Regional Administrator has 

complied with the provisions of § 9.9 to 

determine that such site is the only 

practicable alternative. The following 

factors shall be substituted for the 

factors in § 9.9(c) and (e)(2) through (4): 

(i) Speedy provision of temporary 

housing; 

(ii) Potential flood risk to the 

temporary housing occupant; 

(iii) Cost effectiveness; 

(iv) Social and neighborhood patterns; 

(v) Timely availability of other 

housing resources; and 

(vi) Potential harm to the floodplain 

or wetland. 

(4) For temporary housing units at 

group sites, Step 4 of the 8-step process 

shall be applied in accordance with 

§ 9.10. 

(5) An individual or family shall not 

be housed in a floodplain or wetland 

(except in existing resources) unless the 

Regional Administrator has complied 

with the provisions of § 9.11 to 

minimize harm to and within 

floodplains and wetlands. The following 

provisions shall be substituted for the 

provisions of § 9.11(d) for temporary 

housing units: 

(i) No temporary housing unit may be 

placed unless it is elevated to the fullest 

extent practicable up to the base flood 

elevation and adequately anchored. 

(ii) No temporary housing unit may be 

placed if such placement is inconsistent 

with the criteria of the NFIP (44 CFR 


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parts 59 and 60) or any more restrictive 

Federal, State, or local floodplain 

management standard. Such standards 

may require elevation to the base flood 

elevation in the absence of a variance. 

(iii) Temporary housing units shall be 

elevated on open works (walls, 

columns, piers, piles, etc.) rather than 

on fill where practicable. 

(iv) To minimize the effect of floods 

on human health, safety and welfare, 

the Agency shall: 

(A) Where appropriate, integrate all of 

its proposed actions in placing 

temporary housing units for temporary 

housing in floodplains into existing 

flood warning or preparedness plans 

and ensure that available flood warning 

time is reflected; 

(B) Provide adequate access and 

egress to and from the proposed site of 

the temporary housing unit; and 

(C) Give special consideration to the 

unique hazard potential in flash flood 

and rapid-rise areas. 

(6) FEMA shall comply with Step 2 

Early Public Notice (§ 9.8(c)) and Step 7 

Final Public Notice (§ 9.12). In 

providing these notices, the emergency 

nature of temporary housing shall be 

taken into account. 

(7) FEMA shall carry out the actions 

in accordance with Step 8, ensuring the 

requirements of this section and the 

decision-making process are fully 

integrated into the provision of 

temporary housing. 

(d) Sale or disposal of temporary 

housing. The following applies to the 

permanent installation of a temporary 

housing unit as part of a sale or disposal 

of temporary housing: 

(1) FEMA shall not permanently 

install temporary housing units in 

floodways or coastal high hazard areas. 

FEMA shall not permanently install a 

temporary housing unit in floodplains 

as established by 9.7(c) or wetlands 

unless there is full compliance with the 

8-step process. Given the vulnerability 

of temporary housing units to flooding, 

a rejection of a non-floodplain location 

alternative and of the no-action 

alternative shall be based on: 

(i) A compelling need of the family or 

individual to buy a temporary housing 

unit for permanent housing; and 

(ii) A compelling requirement to 

permanently install the unit in a 

floodplain. 

(2) FEMA shall not permanently 

install temporary housing units in the 

floodplain as established by § 9.7(c) 

unless they are or will be elevated at 

least to the elevation of the floodplain 

as established by § 9.7(c). 

(3) The Regional Administrator shall 

notify FEMA Resilience of each instance 

where a floodplain location has been 

found to be the only practicable 

alternative for permanent installation of 

a temporary housing unit. 

■ 15. In § 9.14, revise paragraphs (a), 

(b)(4), (5), (6), (b)(7)(ii) and (iii), and 

(b)(9) to read as follows: 

§ 9.14 Disposal of Agency Property 

(a) This section sets forth the 

procedures whereby the Agency shall 

dispose of property. 

(b) * * * 

(4) Identify the potential impacts and 

support of floodplain and wetland 

development associated with the 

disposal of the property in accordance 

with § 9.10; 

(5) Identify the steps necessary to 

minimize, restore, preserve and enhance 

in accordance with § 9.11. For disposals, 

this analysis shall address all four of 

these components of mitigation where 

unimproved property is involved, but 

shall focus on minimization through 

elevation or floodproofing and 

restoration of natural values where 

improved property is involved; 

(6) Reevaluate the proposal to dispose 

of the property in light of its exposure 

to the flood hazard and its natural 

values-related impacts, in accordance 

with § 9.9. This analysis shall focus on 

whether it is practicable in light of the 

findings from §§ 9.10 and 9.11 to 

dispose of the property, or whether it 

must be retained. If it is determined that 

it is practicable to dispose of the 

property, this analysis shall identify the 

practicable alternative that best achieves 

the Agency’s mitigation responsibility. 

(7) * * * 

(ii) Properties located inside the 

floodplain but outside of the floodway 

and the coastal high hazard area; and 

(iii) Properties located in a floodway, 

regulatory floodway, or coastal high 

hazard area. 

* * * * * 

■ 16. In § 9.16, revise paragraph (b) 

introductory text, paragraphs (b)(2) 

through (b)(5), and paragraph (c) to read 

as follows: 

§ 9.16 Guidance for applicants. 

* * * * * 

(b) This shall be accomplished 

primarily through amendment of all 

Agency instructions to applicants, and 

also through contact made by agency 

staff during the normal course of their 

activities, to fully inform prospective 

applicants of: 

* * * * * 

(2) The decision-making process to be 

used by the Agency in making the 

determination of whether to take an 

action in or affecting floodplains or 

wetlands as set out in § 9.6; 

(3) The practicability analysis as set 

out in § 9.9; 

(4) The mitigation responsibilities as 

set out in § 9.11; 

(5) The public notice and involvement 

process as set out in §§ 9.8 and 9.12; and 

* * * * * 

(c) Guidance to applicants shall be 

provided, where possible, prior to the 

time of application in order to minimize 

potential delays in the Agency’s 

processing of the application due to 

failure of applicants to follow the 

provisions in this part. 

■ 17. In § 9.17, revise paragraph (a), 

paragraph (b) introductory text, 

paragraphs (b)(3) through (b)(5), and 

paragraphs (c) and (d) to read as follows: 

§ 9.17 Instructions to applicants. 

(a) Purpose. In accordance with 

Executive Orders 11988, as amended, 

and 11990, the Federal executive 

agencies must respond to a number of 

floodplain management and wetland 

protection responsibilities before 

carrying out any of their activities, 

including the provision of Federal 

financial and technical assistance. This 

section provides notice to applicants for 

Agency assistance of both the criteria 

that FEMA is required to follow, and the 

applicants’ responsibilities under this 

part. 

(b) Responsibilities of Applicants. 

Based upon the guidance provided by 

the Agency under § 9.16, the guidance 

included in the U.S. Water Resources 

Council’s Guidelines for Implementing 

Executive Order 11988, Floodplain 

Management, and Executive Oder 

13690, Establishing a Federal Flood Risk 

Management Standard and a Process for 

Further Soliciting and Considering 

Stakeholder Input, and based upon the 

provisions of the Orders and this part, 

applicants for Agency assistance shall 

recognize and reflect in their 

application: 

* * * * * 

(3) The practicability analysis as set 

out in § 9.9; 

(4) The mitigation responsibilities as 

set out in § 9.11; 

(5) The public notice and involvement 

process as set out in §§ 9.8 and 9.12; and 

* * * * * 

(c) Provision of supporting 

information. Applicants for Agency 

assistance may be required to provide 

supporting information relative to the 

various responsibilities set out in 

paragraph (b) of this section as a 

prerequisite to the approval of their 

applications. 

(d) Approval of applicants. 

Applications for Agency assistance shall 

be reviewed for compliance with the 


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provisions in this part in addition to the 

Agency’s other approval criteria. 

■ 18. In § 9.18, revise paragraph (a)(1), 

the second sentence of paragraph (b)(1), 

and the first sentence of (b)(2) to read as 

follows: 

§ 9.18 Responsibilities. 

(a) * * * 

(1) Implement the requirements of the 

Orders and this part. Under §§ 9.2, 9.6 

through 9.13, and 9.15 where a direction 

is given to the Agency, it is the 

responsibility of the Regional 

Administrator. 

* * * * * 

(b) * * * 

(1) * * * When a decision of a 

Regional Administrator relating to 

disaster assistance is appealed, FEMA 

Resilience may make determinations 

under this part on behalf of the Agency. 

(2) Prepare and submit to the Office 

of Chief Counsel reports to the Office of 

Management and Budget in accordance 

with section 2(b) of Executive Order 

11988, as amended, and section 3 of 

Executive Order 11990.* * * 

Appendix A to Part 9 [Removed] 

■ 19. Remove appendix A to part 9. 

Deanne B. Criswell, 

Administrator, Federal Emergency 

Management Agency. 

[FR Doc. 2023–21101 Filed 9–29–23; 8:45 am] 

BILLING CODE 9111–66–P 


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