According to the National Oceanic & Atmospheric Administration (NOAA), flooding is the most common type of weather-related natural disaster in the United States. Flooding is also becoming more frequent and more severe as a result of climate change, which is contributing to sea level rise, extreme storm events, and other phenomena that are exposing structures throughout the nation to levels of inundation that they have never experienced before. Faced with these realities, the Federal Emergency Management Agency (FEMA) recently published a Final Rule in the Federal Register on July 11, 2024 that implements the “Federal Flood Risk Management Standard “(FFRMS), a new standard for development in flood prone areas. Under the FFRMS, infrastructure and other projects that are rebuilt with federal aid or other types of federal funding after a natural disaster will need to meet new, higher elevation requirements. With the Rule’s September 9, 2024 effective date quickly approaching, developers, contractors, and other professionals involved in post-disaster rebuilding must familiarize themselves with the new regulatory landscape in which they will soon operate.
As the lead federal agency for disaster preparation and response, FEMA spends hundreds of millions of dollars every year on rebuilding schools, hospitals and other facilities that were destroyed by hurricanes or other natural disasters. In order to improve community resilience and avoid the need for rebuilding these structures again, the federal government has historically required post-disaster reconstruction to occur outside of the so-called 100-year floodplain, which refers to areas with a 1% chance of experiencing flooding in any given year. Under the new Final Rule, FEMA will abandon this approach—which was based on historical data—in favor of a standard that allows the agency to consider forward-looking climate science data in its assessment of where to site eligible reconstruction projects. Additionally, the Rule will generally require that reconstructed projects be elevated at least two feet above the 100-year floodplain or be relocated outside of the 500-year floodplain, where there is at least a 0.2% chance of flooding in a given year.
The July 11 Final Rule was issued alongside a FEMA guidance document, FEMA Policy 206-24-005, which clarifies and provides guidance on how to implement FFRMS. . Both the Rule and the Policy were guided by an analysis in the Federal Flood Risk Management Standard Climate Informed Science Approach (CISA) State of the Science Report issued by the National Climate Task Force in March 2023. The CISA approach utilizes current and future changes in flooding based on the best-available, actionable climate science in order to determine flood risk.
Using forward looking data, as opposed to historic rainfall and flood data, is a relatively new approach that is currently used to identify floodplains by only handful of states, including New Jersey.
For any readers who want to take a deeper dive into the FFRMS, links to the Final Rule, FEMA Policy 206-24-005, and the CISA State of the Science Report are available below:
- July 11, 2024 FFRMS Final Rule in the Federal Register
- FEMA Policy 206-24-005
- March 2023 CISA State of the Science Report
If you have any questions concerning the potential impacts of FEMA’s new flood resilience rule , feel free to contact Amie C. Kalac (AKalac@cullenllp.com), Brendan Mooney (BMooney@cullenllp.com), Neil Yoskin (NYoskin@cullenllp.com), or Zachary Klein (ZKlein@cullenllp.com).
Please note that this is a general overview of the law and no content within this excerpt constitutes legal advice. Nothing herein creates an attorney-client relationship between the sender and recipient.