Climate Change Attorney Blog
On January 30,2015 the President issued an Executive Order fixing new standards for construction within a floodplain. The new Flood Risk Management Standard amends Executive Order 11988 of May 24, 1977.
The new standards impact projects where agencies ” guarantee, approve, regulate, or insure any financial transaction which is related to an area located in an area subject to the base flood”.
The old order established floodplains as areas with at a minimum of a one percent or greater annual chance of flooding. The new rule is broader and more stringent stating:
“The floodplain shall be established using one of the following approaches:
“(1) Unless an exception is made under paragraph (2), the floodplain shall be:
“(i) the elevation and flood hazard area that result from using a climate-informed 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;
“(ii) the elevation and flood hazard area that result from using the freeboard value, reached by adding an additional 2 feet to the base flood elevation for non-critical actions and by adding an additional 3 feet to the base flood elevation for critical actions;
“(iii) the area subject to flooding by the 0.2 percent annual chance flood; or
“(iv) the elevation and flood hazard area that result from using any other method identified in an update to the FFRMS.”
Paragraph 2 exceptions include issues of national security or emergencies.
The Executive Order goes on to direct:
“To the extent permitted by law, each agency shall, in consultation with the Water Resources Council, Federal Interagency Floodplain Management Task Force, Federal Emergency Management Agency, and Council on Environmental Quality, issue or amend existing regulations and procedures to comply with this order, and update those regulations and procedures as warranted.”