[Federal Register Volume 66, Number 115 (Thursday, June 14, 2001)]
[Proposed Rules]
[Pages 32293-32296]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-15055]


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FEDERAL EMERGENCY MANAGEMENT AGENCY

44 CFR Parts 59 and 64

RIN 3067-AD18


Changes to General Provisions and Communities Eligible for the 
Sale of Insurance That Include Future Conditions Flood Hazard 
Information on Flood Maps

AGENCY: Federal Emergency Management Agency (FEMA).

ACTION: Proposed rule.

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SUMMARY: This Proposed Rule will revises the National Flood Insurance 
Program (NFIP) regulations to include definitions for future conditions 
hydrology and for the floodplains that may be shown on Flood Insurance 
Rate Maps (FIRMs), for informational purposes at the request of the 
community, to reflect future conditions hydrology; and establish the 
zone symbol to be used to identify future conditions flood hazard areas 
on the FIRMs.

DATES: We invite comments on this Proposed Rule. Please submit written 
comments on or before August 13, 2001.

ADDRESSES: Please send written comments to the Rules Docket Clerk, 
Office of the General Counsel, Federal Emergency Management Agency, 500 
C Street SW., Washington, DC; facsimile (202) 646-4536.

FOR FURTHER INFORMATION CONTACT: Matthew B. Miller, P.E., Chief, 
Hazards Study Branch, 500 C Street SW., Washington, DC 20472; by 
telephone at (202) 646-3461, by facsimile at (202) 646-4596 (not toll-
free calls), or by e-mail at <a href="/cdn-cgi/l/email-protection#533e3227277d3e3a3f3f36211335363e327d343c25"><span class="__cf_email__" data-cfemail="deb3bfaaaaf0b3b7b2b2bbac9eb8bbb3bff0b9b1a8">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

Background

    It was the expressed intent of the U.S. Congress, in enacting the 
Flood Insurance Act of 1968, to ``encourage State and local governments 
to make appropriate land use adjustments to constrict the development 
of land which is exposed to flood damage and minimize damage caused by 
flood losses, and guide the development of proposed future 
construction, where practicable, away from locations which are 
threatened by flood hazards * * *'' 42 U.S.C. 4001(e). These proposed 
revisions to the NFIP regulations are a result of the continuing 
reappraisal of the NFIP for the purpose of encouraging sound floodplain 
management to reflect that intent.
    Historically, flood hazard information presented on NFIP flood maps 
has been based on the existing conditions of the floodplain and 
watershed. When the

[[Page 32294]]

mapping of flood hazards was initiated under the NFIP, the intent was 
to reassess each community's flood hazards periodically and, if needed, 
revise the flood map for that community. Flood hazards may change 
significantly in areas experiencing urban growth. For example, in Flood 
Insurance Study Guidelines and Specifications for Study Contractors 
(FEMA 37, January 1995) specifies that flood hazard determinations 
should be based on conditions that are planned to exist in the 
community within 12 months following completion of the draft Flood 
Insurance Study (FIS). Examples of future conditions to be considered 
in the context of FEMA 37 are public works projects in progress, 
including such as channel modifications, hydraulic control structures, 
storm-drainage systems, and various other flood protection projects. 
These are projects that will be completed in the near future for which 
completion can be predicted with a reasonable degree of certainty and 
their completion can be confirmed prior to the new or revised flood map 
becoming effective. By contrast, future land-use development, such as 
urban growth, is uncertain and difficult to predict, and is not 
considered in the context of the FEMA guidelines.
    Communities experiencing urban growth and other changes have 
expressed a desire to use future conditions hydrology in regulating 
watershed development. While some communities do regulate based on 
future development, others are hesitant to enforce more restrictive 
standards without Federal support. From a floodplain management 
standpoint, future conditions floodplains can be used, and are being, 
used, by communities to enforce more stringent floodplain management 
policies than those required by FEMA. By displaying future conditions 
floodplains on the flood map, the community and FEMA are alerting the 
public that flood hazards may increase in the future due to urban 
development. Many communities throughout the United States develop 
future conditions hydrology and create their own maps to regulate 
floodplain development. This has resulted in two sets of maps being 
produced for a community: future conditions maps for local floodplain 
management and FIRMs for flood insurance determinations. As a result, 
these progressive communities have not had a sense ofhad a sense of 
ownership forfor the FIRMs, and their resources have been directed 
toward maintaining their own future conditions maps.

Recent Evaluation and Conclusions

    To assist officials in such progressive communities, FEMA undertook 
an evaluation to determine whether future conditions flood hazard 
information could and should be placed on flood maps and in the 
accompanying study reports. The results of that extensive evaluation 
are documented in a FEMA report entitled ``Modernizing FEMA's Flood 
Hazard Mapping Program: Recommendations for Using Future Conditions 
Hydrology for the National Flood Insurance Program'' (see www.fema.gov/mit/tsd/FT_hydro.htm). The specific conclusions reached in the report 
are as follows:
    <bullet> The local community should determine the future conditions 
land-use and hydrology.
    <bullet> If the community chooses to adopt a regulatory floodway 
based on future conditions hydrology, the use of this floodway should 
be supported by local ordinances.
    <bullet> If the community requests that FEMA do so, the future 
conditions 100-year (base flood) floodplain should be shown on the 
printed FIRM and be designated as Zone X with no Bbase Fflood 
Eelevations (BFEs) shown.
    <bullet> When possible, all three floodplains--existing conditions 
100-year floodplain, existing conditions 500-year floodplain, and 
future conditions 100-year floodplain--should be shown on the FIRM. 
However, when the future conditions 100-year floodplain and existing 
conditions 500-year floodplain are so close together as to be confusing 
if both are shown on the printed FIRM, the future conditions 100-year 
floodplain should be shown in lieu of the existing conditions 500-year 
floodplain. When this occurs, appropriate reference should be made to 
the existing conditions 500-year floodplain information being shown in 
the FIS report. For a Digital Flood Insurance Rate Map (DFIRM), 
appropriate reference also should be made to the existing conditions 
500-year floodplain information being included in an associated 
database.
    <bullet> BFEs should be shown on the FIRM only for the existing 
conditions 100-year floodplain. The future conditions BFEs should be 
included in the FIS report (on the Flood Profiles and in the Floodway 
Data Table), thus providing necessary information to the community to 
meet their local floodplain management needs. The existing conditions 
500-year flood elevations also should be shown on the Flood Profiles in 
the FIS report to meet the requirements of Executive Order No. 11988 
and to provide Federal agencies with information to evaluate the 
potential effects of any actions they may take in a floodplain.
    <bullet> The community may choose to show the existing conditions 
500-year floodplain on the FIRM and to include the future conditions 
100-year elevations only on the Flood Profiles in the FIS report. 
Various other combinations to display the flood hazard data also are 
possible. FEMA and the community should work together to produce the 
most useful FIRM and FIS report for the community.
    <bullet> From a floodplain management standpoint, FEMA should 
continue to require regulation of floodplain development based on the 
existing conditions data, while local floodplain managers can regulate 
development based on the future conditions data.
    <bullet> From a flood insurance standpoint, FEMA must continue to 
require flood insurance for structures shown in the existing conditions 
100-year floodplain, or Special Flood Hazard Area. Showing the future 
conditions floodplain as Zone X should avoid any confusion regarding 
the mandatory flood insurance requirement. It also will and allow 
insurance policies to be purchased at a reduced rate, as insurance is 
currently available for structures in the existing conditions 500-year 
floodplain.
    As recommended in the previously referenced FEMA report, FEMA 
intends to show future conditions flood hazard information on flood 
FIRMs and in collateral FIS reports. This information will be for 
informational purposes only. There will be nNo change will be made in 
the use of existing conditions data for establishing flood insurance 
rates. Through community participation in the Community Rating System, 
however, reduced flood insurance rates are available for those 
communities that enforce more stringent regulatory standards than 
required by the NFIP.

Synergy With Other FEMA Programs

    The inclusion of future conditions data in FIRMs and related 
products for communities that request that such data be included is 
part of a larger FEMA plan to modernize the flood hazard mapping 
program and thereby reducinge the burden on taxpayers for disaster 
relief and improving flood hazard mitigation. FEMA's plan is to 
facilitate ownership of the flood maps by State and local entities 
through greatly increased involvement in the flood mapping process 
through cooperative agreements. FEMA will provide flood mapping funds, 
technical assistance, and mentoring to partners--termed a ``Cooperating 
Technical Community Partners''--and those partners will then develop 
and maintain

[[Page 32295]]

all of the flood maps or components thereof. The proposed cooperative 
agreements recognize that hazard identification and mapping must go 
hand-in-hand with the responsibility of managing floodplains locally. 
By creating a strong local program that maintains the connection 
between mapping and managing flood hazard areas, the NFIP also is 
strengthened in its ability to reduce the loss of property and life.
    FEMA recognition of future conditions data will be a key factor in 
the State and local communities assuming increased ownership in the 
process. By mapping locally pertinent information, local ownership of 
the NFIP flood maps will increase. Because flood conditions and hazards 
vary locally and regionally, inclusion of those unique local conditions 
on the flood maps may be warranted. For example, a community may find 
it useful to identify areas on the FIRM with floodplains based on 
developed/future hydrologic conditions in addition to the standard 
features already depicted. In effect, FEMA will maintain national 
standards while at the same time providing a useful tool to the 
community. These changes also will directly complement FEMA's 
mitigation activities. Communities will now be able to better implement 
proactive mitigation measures based on awareness of future conditions 
in their community by the public and by the development community.
    In sum, the use of future conditions hydrology is consistent with 
modernizing the mapping program; with promoting better proactive 
mitigation measures; and with FEMA's desire to be flexible with, and 
supportive of, those communities that would like to implement stricter 
land-use regulations.

Planned Implementation

    The FEMA plans for implementing the presentation of future 
conditions flood hazard information on NFIP flood maps are summarized 
below.
    Map Specifications. The new DFIRM product specifications being 
developed by FEMA will include options that can be invoked depending on 
the available data. This new DFIRM product will include certain basic 
features and meet certain minimum mapping requirements. Additional 
options will be included, depending on the community needs and 
available funding. A review of needs and available data will lead to a 
time and cost estimate and a recommendation on which options to 
exercise. Procedures for displaying future conditions floodplains on 
the new DFIRM will be included in these new mapping specifications.
    Cooperating Technical Partners Activities. As a part of the mapping 
activities undertaken by communities participating in the Cooperating 
Technical Partners initiative, an option could be for communities to 
show the 100-year future conditions floodplain on the FIRM in addition 
to the existing conditions floodplain. The communities would develop 
and map existing and future conditions and provide the new FIRM and 
supporting data to FEMA; in turn, the communities would receive a 
useful tool for risk assessment and flood hazard mitigation.
    Revisions. Because mapping future conditions floodplains would be 
implemented on a community level, the flood maps will maintain 
consistency within community boundaries, regardless of how many map 
panels the community encompasses. When FEMA receives future conditions 
data from communities that wish to participate, the data could be 
incorporated easily at the time of the digital conversion to the DFIRM 
product. Alternatively, communities that require flood hazard updates 
can submit future conditions data to be incorporated with the existing 
conditions data updates for the DFIRM conversion. Displaying future 
conditions data will increase community involvement in the NFIP and 
help FEMA to build stronger partnerships with communities. If these 
communities are involved at the beginning of the digital conversion 
process, they will have a stronger sense of ownership of the flood 
maps, because they will have input on the kind of flood hazard 
information shown on the maps.
    Once the future conditions floodplains have been included on a 
flood map, all FEMA- or community-initiated studies, restudies, and 
revisions will incorporate the future conditions hydrology that the 
community has determined. FEMA will perform a technical review of the 
locally developed data and will include the data in all map updates. 
Additionally, FEMA will continue to make determinations on whether 
structures and parcels of land are in or out of existing conditions 
floodplains shown on NFIP maps, and will issue Letters of Map Amendment 
and Letters of Map Revisions Based on Fill based on these 
determinations. This procedure can be expanded to determine whether 
these structures and parcels of land are in or out of the future 
conditions floodplain when those floodplains are shown on the NFIP 
maps.

National Environmental Policy Act

    This Proposed Rule is categorically excluded from the requirements 
of 44 CFR part 10.8(d)(2)(ii), Environmental Consideration. No 
environmental impact assessment has been prepared.

Regulatory Flexibility Act

    Under the Regulatory Flexibility Act agencies must consider the 
impact of their rulemakings on ``small entities'' (small businesses, 
small organizations and local governments). When an agency is required 
by 5 U.S.C. 553 to publish a notice of proposed rulemaking, a 
regulatory flexibility analysis is required for both the proposed rule 
and the final rule if the rulemaking could ``have a significant 
economic impact on a substantial number of small entities.'' The Act 
also provides that if a regulatory flexibility analysis is not 
required, the agency must certify in the rulemaking document that the 
rulemaking will not ``have a significant economic impact on a 
substantial number of small entities.''
    For the reasons that follow I certify that a regulatory flexibility 
analysis is not required for this rule because it would not have a 
significant economic impact on a substantial number of small entities. 
This proposed rule revises the NFIP regulations to (1) include the 
definitions for future conditions hydrology and for the flood plains 
that may be shown on the FIRMs, for informational purposes at the 
request of the community, to reflect future conditions hydrology and 
(2) establish the zone symbol to be used to identify future conditions 
flood hazard areas on the FIRMs.

Executive Order 13132, Federalism

    Executive Order 13132, Federalism, dated August 4, 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, 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.
    We have reviewed this rule under E.O.13132 and have concluded that 
the rule does not have federalism implications as defined by the 
Executive Order. As noted under Regulatory

[[Page 32296]]

Planning and Review, this proposed rule revises the NFIP regulations to 
(1) include the definitions for future conditions hydrology and for the 
flood plains that may be shown on the FIRMs, for informational purposes 
at the request of the community, to reflect future conditions hydrology 
and (2) establish the zone symbol to be used to identify future 
conditions flood hazard areas on the FIRMs. We know of no substantial 
direct effects on the States, or on the distribution of power and 
responsibilities among the various levels of government.
    The Office of Management and Budget has reviewed this rule under 
the provisions of Executive Order 13132.

Executive Order 12778, Civil Justice Reform

    This Proposed Rule meets the applicable standards of Section 
2(b)(2) of Executive Order 12778, Civil Justice Reform.

Executive Order 12866, Regulatory Planning and Review

    Promulgation of this rule is required by statute, 42 U.S.C 4014(f) 
which also specifies the regulatory approach to be taken in the 
proposed rule. To the extent possible under the statutory requirements 
of 42 U.S.C. 4014(f), this Proposed Rule adheres to the provisions of 
E.O. 12866, Regulatory Planning and Review. Under Executive Order 
12866, 58 FR 51735, October 4, 1993, a significant regulatory action is 
subject to OMB review and the requirements of the Executive Order. The 
Executive Order defines ``significant regulatory action'' as one that 
is likely to result in a rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    This proposed rule revises the NFIP regulations to (1) include the 
definitions for future conditions hydrology and for the flood plains 
that may be shown on the FIRMs, for informational purposes at the 
request of the community, to reflect future conditions hydrology and 
(2) establish the zone symbol to be used to identify future conditions 
flood hazard areas on the FIRMs. We know of no conditions that would 
qualify the rule as a ``significant regulatory action'' within the 
definition of section 3(f) of the Executive Order. To the extent 
possible this rule adheres to the principles of regulation in Executive 
Order 12866. The Office of Management and Budget has not reviewed this 
rule under the provisions of Executive Order 12866.

List of Subjects in 44 CFR Parts 59 and 64

    Administrative practice and procedure, Flood insurance, 
Floodplains, and Reporting and record keeping requirements.

    Accordingly, 44 CFR parts 59 and 64 will be amended as follows:

PART 59--[AMENDED]

    1. Section 59.1 is revised to include the following a definition 
for: Area of future conditions flood hazard means the land area that 
would be inundated by the 1-percent-annual-chance flood based on future 
conditions hydrology.
    2. Section 59.1 is revised to include the following definition: 
Future conditions flood hazard area, or future conditions floodplain--
see Area of future conditions flood hazard.
    3. Section 59.1 is revised to include the following definition: 
Future conditions hydrology means the flood discharges associated with 
projected land-use conditions based on a community's zoning maps or 
comprehensive land-use plans.

PART 64--[AMENDED]

    1. The initial text of Paragraph 64.3(a)(1) will be revised to read 
as follows:
    (1) Flood Insurance Rate Map (FIRM): This map is prepared after the 
risk study for the community has been completed and the risk premium 
rates have been established. The FIRM indicates the risk premium rate 
zones applicable in the community and when those rates are effective. 
The FIRM also may indicate, at the request of the community, zones to 
identify areas of future conditions flood hazards. The symbols used to 
designate the risk premium rate zones and future conditions zones are 
as follows:
    2. The entry for the zone symbol for Zones B, X that appears in 
Paragraph 64.3(a)(1) will be revised to read as follows:

B, X......Areas of moderate flood hazards or areas of future conditions 
flood hazard

    3. The closing text of Paragraph 64.3(a)(1) will be revised to read 
as follows:
    Areas identified as subject to more than one hazard (flood, 
mudslide (i.e., mudflow), flood-related erosion) or potential hazard 
(i.e., future conditions flooding) will be designated on the FIRM by 
use of the proper zone symbols in combination.

    Dated: June 5, 2001.
Margaret E. Lawless,
Acting Executive Associate Director for Mitigation.
[FR Doc. 01-15055 Filed 6-13-01; 8:45 am]
BILLING CODE 6718-04-P


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