Wednesday, August 26, 2015

Executive Order 13690 and the Federal Flood Risk Management Standard - Background and Opportunities for Public Input

On January 30, 2015, President Barack Obama released Executive Order 13690, "Establishing a Federal Flood Risk Management Standard and a Process for Further Soliciting and Considering Stakeholder Input," to  further the President’s June, 2013 Climate Action Plan.  The Climate Action Plan directed federal agencies to take appropriate actions needed to reduce risks to federal investments, and to specifically “update their flood-risk reduction standards.”  The new Federal Flood Risk Management Standard ("FFRMS" or "Standard") builds upon Executive Order (EO) 11988 governing federal actions in floodplains (issued in 1977).  After Executive Order 11988 was issued, the Water Resources Council[1] issued implementing guidelines for agencies to assist with incorporating the standards of the EO into their policies, procedures, and programs.  The new Standard is meant to be incorporated into existing Federal department and agency processes used to implement EO 11988.

The FFRMS and Executive Order 13690 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 Federal money last as long as intended.  The new Standard requires all future federal investments in and affecting floodplains to meet a level of resilience established by the Standard, including investments where federal funds are used to build new structures and facilities, or to rebuild structures and facilities that have been damaged.  The Standard applies to all Federal activities[2] except those "in the interest of national security, where the agency action is an emergency action, where application to a Federal facility or structure is demonstrably inappropriate, or where the agency action is a mission-critical requirement related to a national security interest or emergency action."

The Standard encourages the use of natural features and nature-based approaches in the development of alternatives, provides a higher vertical elevation and corresponding floodplain, where appropriate, to address current and future flood risks, and provides for three approaches to establish the Standard's elevation and flood hazard area (among those three approaches, preferring a climate-informed science approach).  Importantly, EO 13690 does not prohibit building in floodplains, and does not apply to private investments in structures, facilities or homes.  The Standard will not affect flood insurance premiums or the requirements for participation in the National Flood Insurance Program.

The Mitigation Framework Leadership Group (MitFLG)[3], established through the National Mitigation Framework developed the new Standard and is tasked with periodically  reassessing the Standard in order to provide recommendations for updating it to the Water Resources Council in consultation with the Federal Interagency Floodplain Management Task Force (FIFMTF)[4].

The Federal Emergency Management Agency (FEMA) published Draft Guidelines for Implementing Executive Order 13690 on behalf of the MitFLG in the February 5, 2015 Federal Register, opening up a public comment period that closed on May 6, 2015.  Comments submitted on the draft Guidelines can be found on this page.  The MitFLG will revise the draft Guidelines, based on input received during that public comment process, and provide recommendations to the Water Resources Council, which will then issue amended Guidelines informed by stakeholder input.

Opportunities for Public Input
The initial public comment period on the Draft Guidelines for Implementing Executive Order 13690 closed on May 6, 2015 (see Figure 1).  However, there will be additional opportunities for interested parties to suggest changes to the manner in which the new Standard is being implemented: first, when agencies modify existing policy through a rulemaking process requiring public comment; second, as the FFRMS is formally reassessed on an annual basis by the MitFLG; and third, through less formal communications with agencies as they continually assess opportunities to enhance or modify the Standard and how it is being applied.  Each opportunity is explored below.

1.      Formal rulemaking: EO 13690 tasks the Water Resources Council with issuing amended Guidelines to provide direction to agencies on the implementation of Executive Order 11988 consistent with the new Standard.  After the revised Guidelines are issued by the Water Resources Council, Federal agencies will use the Guidelines to update policies, procedures and regulations for implementing the Executive Orders. The agency and program-specific updates are anticipated to provide for additional public engagement.  EO 13690 states that agencies will have flexibility in implementing the new Standard and will incorporate input from the public and stakeholders on their specific programs and policies (emphasis added).[5] 

Specifically, within 30 days after the Water Resources Council issues amended  Guidelines, each agency is required under EO 13690 to “submit an implementation plan to the National Security Council staff that contains milestones and a timeline for implementation of this order and the Standard, by the agency as it applies to the agency's processes and mission.“  In many cases, the agency implementation plan will include formalized rulemaking that may be subject to additional public input (assuming the changes represent major revisions to existing procedures).  With respect to this policy revision, EO 13690 states, “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.” 

2.      Annual reassessment: EO 13690 directs the MitFLG, in consultation with the FIFMTF and after seeking stakeholder input, to reassess the Standard annually to determine if updates are warranted and then to provide any recommendations to the Water Resources Council (emphasis added).  The Water Resources Council is in turn directed to issue an update to the Standard at least every five years.   

3.      Continuous reassessment: EO 13690 directs Federal departments and agencies implementing the FFRMS, to continually identify implementation challenges as well as opportunities to enhance or modify the Standard, in order to “ensure that the FFRMS continues to meet its stated objectives.”  The Federal departments and agencies are also directed to “collect feedback on implementation from relevant programs and offices, identify potential gaps in the process, and outline areas for improvement with the Standard,” and to provide that information to the MitFLG as part of the annual reassessment of the Standard mentioned in item number 2, above.  Ongoing stakeholder dialogue with Federal agencies as they implement the new Standard will inform this ongoing assessment process.

Figure 1. FFRMS and Implementing Guidelines Development Process (Source: FEMA)


[1] The Water Resources Council was established by the Water Resources Planning Act (79 Stat. 244), July 22, 1965.  It is composed by the Secretary of the Interior, the Secretary of Agriculture, the Secretary of the Army, the Secretary of Commerce, the Secretary of Housing and Urban Development, the Secretary of Transportation, the Administrator of the Environmental Protection Agency, and the Secretary of Energy.
[2] Among other things, EO 11988 described "Federal Actions" to which the FFRMS applies 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 use resource planning, regulating, and licensing activities.” 

[3] The MitFLG was formed in 2013 to coordinate mitigation efforts across the Federal government and to assess the effectiveness of mitigation capabilities as they are developed and deployed across the U.S. The MitFLG includes local, state and tribal representation, as well as members from the following Federal organizations:
  •      Department of Agriculture
  •      Department of Commerce (NOAA and FEMA)
  •      Department of Defense (Corps of Engineers)
  •      Department of Energy
  •      Environmental Protection Agency
  •      General Services Administration
  •      Department of Health and Human Services
  •      Department of Homeland Security
  •      Department of Housing and Urban Development
  •      Department of the Interior
  •      Department of Justice
  •      Small Business Administration
  •      Department of Transportation
[4] Responding to a mandate in the 1968 National Flood Insurance Act, the Federal Interagency Floodplain Management Task Force was established in 1975 to develop a “unified national program for floodplain management. FEMA, with support of the U.S. Army Corps of Engineers reconvened the Federal Interagency Floodplain Management Task Force in 2013 with the overall goal of protecting the health, safety, and welfare of the public by reducing flood losses and protecting the natural environment.

[5] Some agencies have started to analyze the extent to which EO 13690 and the new Standard influence their programs.  See, for example, "HUD Statement on EO 13690 and Its Applicability to Mortgages, Refinancing, and Mortgage Insurance” (07/2015); "The Applicability of EO 13690 and FFRMS to USACE Permitting Authorities” (8/2015); and "The Applicability of Executive Order (E.O.) 11988/13690 to FEMA Programs - Fact Sheet."

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