E.O. 13690 and the Federal Flood Risk Management Standard

E.O. 13690 and the Federal Flood Risk Management Standard

May 27, 2015
E.O. 13690 and the Federal Flood Risk Management Standard
President Obama issued Executive Order (E.O.) 13690 on
determined. The order also requires use of natural systems,
January 30, 2015, to improve the nation’s resilience to
ecosystem processes, or nature-based approaches (i.e.,
floods and manage federal disaster recovery costs. It
human designs that mimic natural processes) where
requires federal agencies to update their procedures and
possible during development for alternatives for federal
regulations related to federal investment and other actions
actions in the floodplain.
in floodplains. E.O. 13690 amended a 1977 order on
floodplain management, E.O. 11988. The amendments
E.O. 13690 requires agencies to determine the floodplain
added a Federal Flood Risk Management Standard
using one of three currently available approaches: freeboard
(FFRMS) and new approaches to use in determining the
value, 500-year floodplain, or climate-informed science.
floodplain for E.O. 11988 compliance. Public comment on
Collectively these approaches are referred to herein as the
draft implementing guidelines for the amended E.O. 11988
“E.O. 13690 floodplain.” The E.O. 13690 floodplain in
ended May 6, 2015 (see FR Doc. 2015-02284). The Water
most cases will be wider than the BFE floodplain. The
Resources Council (WRC) is to issue the final guidelines.
FFRMS provides details regarding how to select and apply
Affected agencies have until June 6, 2015, to develop plans
each approach. In the near term, for many federal actions,
for updating agency-specific procedures; the agency update
the most common approach to determine the E.O. 13690
processes are anticipated to provide additional public
floodplain may be the freeboard value approach, which is 2
comment opportunities. Congress is weighing whether to
feet above BFE (BFE+2), as illustrated by Figure 1. For
influence E.O. 13690 and FFRMS implementation. It can
critical actions, the freeboard value approach is BFE+3.
influence implementation through oversight and
authorization, appropriations, and other legislation.
Figure 1. Illustration of E.O. 13690 Floodplain
Determination Using 2 Foot Vertical Increase
E.O. 11988
E.O. 11988 remains the framework for federal agencies to
avoid or minimize actions in or impacting floodplains. E.O.
11988 defines “action” as any federal activity, including
(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.
For E.O. 11988, the floodplain had been defined as the 1%
annual chance floodplain (i.e., 100-year floodplain), which

is known as the base flood elevation (BFE) floodplain.
Source: CRS.
Implementing guidelines from 1978 had established use of
Notes: Topography will largely determine the horizontal increase.
the 0.2% floodplain for critical actions (i.e., the 500-year
floodplain). A critical action is any activity for which even
E.O. 13690 amends Section 3 of E.O. 11988 to use the E.O.
a slight chance of flooding would be too great (e.g.,
13690 floodplain for the floodproofing and elevation
prisons). Section 3 of E.O. 11988 established specific
requirements for federal real property and facilities. E.O.
requirements for federal real property and facilities. For
13690 and the FFRMS indicate that a similar structural
new construction or major rehabilitations, agencies were to
elevation requirement applies to federally funded actions.
(1) use accepted floodproofing and other flood protection
The final guidelines and updates of agency procedures are
measures for structures and facilities, and, (2) wherever
anticipated to clarify which new construction and major
practicable, elevate structures above the BFE floodplain. A
rehabilitations of structures are required to have their
structure is a walled or roofed building; a facility is a man-
elevations in compliance with the FFRMS.
made or man-placed item other than a structure.
Agency Implementation
E.O. 13690
Given the federal action definition, numerous departments,
While E.O. 13690 maintained the federal actions covered
agencies, programs, and projects that are covered by E.O.
under E.O. 11988, it changed how the floodplain is
11988 also may be affected by the amendments and
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E.O. 13690 and the Federal Flood Risk Management Standard
requirements in E.O. 13690 and the FFRMS. These include
local freeboard and floodplain requirements. That is, the
the activities of the Departments of Agriculture, Defense,
structural elevation for FFRMS compliance may be less,
Energy, Health and Human Services, Housing and Urban
equal, or more than is required locally.
Development, the Interior, and Transportation; the
Environmental Protection Agency; the General Services
Table 1. Select Questions Raised by E.O. 13690 and
Administration; and NASA. Under E.O. 13690, an agency
FFRMS for FEMA and Corps
or department may “except” (i.e., exempt) particular
Agency/Department, Program, and Questions
activities from the E.O. 13690 floodplain for national
security, emergency actions, and federal facilities for which
FEMA: Disaster Assistance and Mitigation Programs
it is demonstrably inappropriate. What is known and what
How does E.O. 13690 affect FEMA’s emergency response
remains uncertain regarding agency-level implementation
programs? The E.O. does not apply to emergency work
of E.O. 13690 and the FFRMS varies depending on the
undertaken with the authority of Stafford Act, Section 403.
extent that publicly available documents address various
topics. Table 1 addresses select topics related to the Federal
How does this affect other Stafford Act sections? FEMA’s
Emergency Management Agency (FEMA) and U.S. Army
permanent work to repair and restore facilities, Section 406 of
Corps of Engineers (Corps).
Stafford, is covered by E.O. 13690. This would include any
mitigation activities within a Section 406-funded project. FEMA
Other Implementation and Policy Topics regulations do not contemplate rebuilding of any facilities unless
they are more than 50% damaged.
The Administration conducted listening sessions in March
Does the FFRMS apply to FEMA mitigation programs? As with
and April 2015 on FFRMS implementation. Topics that
E.O. 11988, E.O. 13690 covers Section 404, FEMA’s Hazard
may be clarified in the final guidelines or in agency
Mitigation Grant Program (HMGP); Section 203, the Pre-Disaster
procedures include “grandfathering” of ongoing projects
Mitigation Program (PDMP); and the Flood Mitigation Assistance
and implementation oversight. Regarding grandfathering,
(FMA) Program, which is a part of the National Flood Insurance
many infrastructure projects take years or decades to plan
Program (NFIP).
and construct. For many activities, E.O. 11988 compliance
has been met as part of National Environmental Policy Act
FEMA: National Flood Insurance Program
(NEPA) compliance. Regarding oversight, E.O. 11988 has
The NFIP uses the 100-year flood to indicate Special Flood
been policy since 1977, but the extent to which it was
Hazard Areas (SFHA), as well as a minimum flood level to be
followed in recent decades is unclear. When E.O. 11988
addressed by a community’s floodplain management ordinances.
was signed, the Water Resources Council was active in
FEMA stipulates that these ordinances require the first floor of
coordinating and overseeing executive branch water
newly constructed buildings in SFHA to be at least at BFE. E.O.
activities. With the WRC largely inactive since 1983, there
13690 does not trigger an update of these local ordinances.
has been limited oversight of E.O. 11988 implementation
According to the Council on Environmental Quality in its fact
beyond floodplain considerations being incorporated within
sheet, “Taking Action to Protect Communities and Reduce the
NEPA documents.
Cost of Future Flood Disasters,” E.O. 13690 and the FFRMS are
not anticipated to directly affect NFIP standards or rates. One
The Administration’s position is that E.O. 13690 and the
question that is anticipated to be addressed in agency-specific
FFRMS are in the interest of national security and
regulations is: could there be indirect NFIP impacts if FEMA
consistent with the Administration’s Climate Action Plan.
amends FEMA regulations at 44 C.F.R. §9, Floodplain Management
The Office of Management and Budget released a statement
and Protection of Wetlands (which were developed in response
on the order’s budget impacts indicating that its
to E.O. 11988) to address E.O. 13690?
implementation is anticipated to increase federal costs but
that effects on federal obligations and outlays will depend
U.S. Army Corps of Engineers Projects, Repairs and Permits
on appropriations. It cited the order’s benefits as increasing
Because Corps civil works are often in floodplains, several
resilience against flooding and helping to preserve the
questions arise. For example, does E.O. 13690 create a minimum
natural values of floodplains. No comprehensive benefit-
design standard for Corps coastal storm damage reduction
cost analyses of E.O. 13690 and the FFRMS (e.g., analysis
projects? To comply with E.O. 11988, the Corps regulatory
that evaluates anticipated effects and their distribution
program is to avoid both significant adverse impacts associated
across stakeholders in the near term and long term) is
with floodplain occupancy and floodplain development whenever
required or has been released. Benefit-cost analyses may be
practicable. Do E.O. 13690 and its floodplain determination for
part of the update processes for agency-specific regulations.
E.O. 11988 create new requirements for the regulatory program?
Whether the ongoing development process provides
Source: CRS.
sufficient opportunities to satisfy the requirement in the
Consolidated and Further Continuing Appropriation Act of
Nicole T. Carter, ncarter@crs.loc.gov, 7-0854
FY2015 (P.L. 113-235) for input by governors, mayors, and
Rawle O. King, rking@crs.loc.gov, 7-5975
other stakeholders is a subject of debate.
Francis X. McCarthy, fmccarthy@crs.loc.gov, 7-9533

Numerous states and communities have established
freeboard requirements within their jurisdictions. Therefore,
IF10150
any structural elevation requirement emanating from the
FFRMS would be part of a preexisting collage of state and
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