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Climate Change Hero

Climate Change Blog

  • 17
  • February
  • 2015

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Does President Obama’s New Flood Risk Management Standard Facilitate Climate Change Adaptation?

On January 30, 2015, President Obama issued Executive Order 13960 modifying Executive Order 11988, which was issued in 1977 to govern federal floodplain management. Executive Order 11988 required all federal agencies to take action to reduce the impact of flood loss, minimize the impact of floods on public health, safety, and welfare, and “preserve the natural and beneficial uses of floodplains.” Under Executive Order 11988, Agencies were to evaluate the effects of their potential actions on the floodplain and “consider alternatives to avoid adverse effects and incompatible development” in floodplains. As modified by E.O. 13960, Agencies are to prioritize the use of ecosystem-based approaches when developing alternatives for consideration when an action will impact floodplain management. 

Executive Order 11988 required each federal agency relevant authority to issue or amend regulations governing its activities in the floodplain that were consistent with the risk management principles set forth in the Order, and included a specific requirement that agencies with responsibilities for federal real property and facilities in the floodplain ensure that their regulations are “consistent with the intent of those promulgated under the National Flood Insurance Program.” E.O. 13960 adds an additional requirement that these regulations also be consistent with the Federal Flood Risk Management Standard. The Federal Flood Risk Management Standard was “developed to create a national minimum flood risk management standard to ensure that federal actions that are located in or near the floodplain when there are no other practical alternatives last as long as intended by considering risks, changes in climate, and vulnerability.”

Adopting the Federal Flood Risk Management Standard, E.O. 13960 implements its new definition of the floodplain. Previously, the floodplain was defined as the area in which there was a 1% chance of flooding in any given year (the 100-year floodplain or “base flood”). Under the approach of the Federal Flood Risk Management Standard, flood elevation can be determined by (1) use of best available data, including expected future changes in flooding based on climate science; (2) freeboard (base flood elevation plus 2 feet in most areas or 3 feet in critical areas); or (3) the 500 year flood elevation. The Flood Risk Management Standard states that the “climate-informed science approach is preferred.” E.O. 13960 adopts these three approaches and any other methods that may be identified in an update to the Flood Risk Management Standard as acceptable options to determine the extent of the floodplain itself, but does not establish the clear preference for a climate-informed approach that is expressed in the Flood Risk Management Standard.

E.O. 13960 further requires that before agencies take any actions to implement its new standards they solicit additional input from stakeholders. Specifically, the executive order directs FEMA to publish a revised draft of the Floodplain Management Guidelines for public comment. E.O. 13960 also contemplates an ongoing process to revise federal floodplain management policies, directing the Water Resources Council to issue further amendments to the Floodplain Management Guidelines “as warranted.”

While E.O. 13960 will increase the scope of the floodplain, it is not yet clear what impact this action alone will have on climate change adaptation. E.O. 13960 does not contain the same clear preference for a climate-science based approach to defining the floodplain that is found in the Federal Flood Risk Management Standard, meaning that the actual incorporation of sea level rise risks into agency regulations and planning processes will be left to the implementation policies and regulations adopted by the individual agencies. Importantly, E.O. 13960 does establish a preference for agencies to consider natural and ecosystem-based approaches to managing flood risk. Such alternatives could provide important opportunities to preserve coastal habitats that provide flood protection—such as wetlands—in their current locations and may provide incentives to accommodate these habitats as sea levels rise by creating space for them to migrate landward. However, there is nothing in the executive order itself that would require such measures nor can the executive order prohibit additional development in vulnerable floodplains.

Ultimately, while E.O. 13960 is important in that it explicitly recognizes the role that climate change may play in enhancing future flood risks, the President does not have the legal authority to mandate that federal agencies stop supporting all activities in floodplains. In fact, there are several statutory authorities, including FEMA’s authority under the National Flood Insurance Program that require federal agencies to provide assistance in flood plains. Therefore, the extent to which E.O. 13960 results in actual climate change adaptation measures will depend upon how the relevant agencies choose to implement it in their own regulations, including the forthcoming revisions to the Floodplain Management Guidelines.

Posted by Margaret Peloso at 02/17/2015 3:54 PM

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Margaret E. Peloso

Margaret E. Peloso Partner