On January 6, ASFPM and the Natural Resources Defense Council (NRDC) delivered a petition to FEMA requesting that FEMA update the agency’s rules for building and land-use in the nation’s floodplains, and to develop and make available flood maps that project future flood risk. This petition was filed under the federal Administrative Procedures Act (APA), which allows any interested party to request an agency to issue, amend, or repeal a rule. The NFIP minimum standards are technically considered federal “rules” found under Title 44 of the Code of Federal Regulations. It is hoped that FEMA will have a favorable response to the petition request that will serve to initiate the rulemaking process.
We sat down with Chad Berginnis, ASFPM Executive Director, for a brief question and answer session on the petition.
Q: Why seek a change to the NFIP building and land-use standards through a petition for rulemaking?
A: The beauty of such a petition is that it is an avenue available to any party to ask an agency to look at rules. And while it is an official legal filing, it is not a lawsuit.
When you look at the NFIP minimum standards they are old, as in decades old. The last change to them was in the mid-1980s when the concept of “substantial damage” was added but you have to go back to the 1970’s to find the last major update. There has been talk among the practitioner community about updating the NFIP minimum standards for at least 20 years. One of the documents in our library is a June 2000 call for issues report by FEMA recommending several changes to the NFIP minimum standards. ASFPM’s master policy document, National Flood Policies and Programs in Review, has long included proposals to strengthen the NFIP minimum standards as well. In fact, the petition cites several FEMA documents, including Mitigation Assessment Team (MAT) reports which are developed after flood events, that recommend higher standards among other things.
Q: Why file the petition now?
A: It’s a matter of public safety. Flood losses are increasing dramatically and we need the national standards to catch up. We have seen a rough doubling of flood losses every decade since the 1990s where now flood losses in the nation are averaging at least $17 billion per year. Unfortunately, looking forward, those losses will only worsen due to climate change. Those losses – and the misery that comes with it – are unacceptable. Something has to change.
NRDC and ASFPM had been working on the petition for several months without any preconceptions of the 2020 election outcome. However, given the election outcome, we certainly hope the Biden administration will recognize the threat flooding presents to our communities and be inclined to act. Certainly, President Biden’s reinstatement of Executive Order 13690 and bringing back the Federal Flood Risk Management Standard is a positive sign of things to come.
Q: What happens if FEMA grants the petition?
A: If FEMA grants the petition they will initiate rulemaking that will be open for public comment. Our organizations will strongly advocate to ensure that the proposed rulemaking is adequate not only to better protect people from current and future flood risk but also to ensure that those most impacted by flooding are part of the process to reform the NFIP.
Q: Are there the proposed changes ASFPM and NRDC are seeking?
A: In the broad sense, we are wanting to see stronger construction and land-use standards, and adequate mapping of future flood conditions. Specifically, there are a number of areas we point to that can be improved:
- Requiring new flood protection elevation to a level higher than the base, or 100-year flood
- Include higher standards for critical facilities and actions
- Significantly strengthen subdivision standards which, in my opinion, are the weakest of the existing standards. When you think about it, subdivision standards are those that focus on land use and that is where we fall short nationally. Land use encompasses a variety of things, including where we put houses, businesses, and public buildings, where we locate and how we build new infrastructure, where/how we construct stormwater management features, and how we set up owners’ associations that will have responsibilities for managing key infrastructure in a subdivision. Given that nearly all new homes and businesses these days are located in subdivisions, if we figure out how to strengthen the NFIP’s subdivision requirements, it will have a significant impact on reducing disaster losses in the future. ASFPM, in partnership with the American Planning Association, undertook important research and produced a report in 2016, PAS 584, that identifies and recommends more than 60 higher standards that could be incorporated into a community’s subdivision regulations. We know there is vast room for improvement to the NFIP minimum standards.
Q: What about the argument that this will increase the cost of housing?
A: Affordable housing shouldn’t mean a cheaply built house in an unsafe place. The cost of ensuring a house is built to a higher flood resilience standard is far less expensive in not only cost, but suffering and downright misery, than the cost to property owners and taxpayers when the home is flooded again and again.
Also, we shouldn’t get fixated on the argument that extra freeboard or a higher flood protection elevation will cost more in constructing the house. How many people pull out a big wad of cash and pay for their entire house up front? Most people I know finance their house and the most important thing to them is the monthly cost of ownership (house payment) that includes the principle on the loan, interest on the loan, and the cost of insurance. Based on calculations we have done, in both A and V Zones, it is cheaper to build an elevation above the 100-year flood based on that monthly cost of ownership due to significant flood insurance savings. So you are not only safer, it is cheaper to own the more flood protected house.
Q: What happens next? When?
A: First, FEMA must evaluate the petition and determine whether they will grant or deny it. If they grant the petition, then they will gear up for rulemaking. The rulemaking process itself will take time because typically an agency would prepare a proposed rule, solicit comments on that rule, adjudicate those comments, and issue a final rule. At a minimum, we are looking at a multi-year process.
This article first appeared in the February issue of News & Views. Access the newsletter archives here and sign up for updates.