National Flood Insurance Program (NFIP); Letter of Map Revision Based on Fill Requests

AGENCY:

Federal Emergency Management Agency (FEMA).

ACTION:

Proposed rule.

SUMMARY:

We, FEMA, propose to amend our procedures for issuing Letters of Map Revision Based on Fill (also referred to as LOMR-F) under the criteria of 44 CFR 65. We use the criteria established in § 65.5 to determine whether we can issue a LOMR-F to remove unimproved land or land with structures from the Special Flood Hazard Area (SFHA) by raising ground elevations using engineered earthen fill.

DATES:

We invite your comments on this proposed rule. Please send any comments on or before November 9, 2000.

ADDRESSES:

Please send written comments to the Rules Docket Clerk, Office of the General Counsel, Federal Emergency Management Agency, 500 C Street, SW., room 840, Washington, DC 20472, (facsimile) 202-646-4536, or (email) rules@fema.gov.

FOR FURTHER INFORMATION CONTACT:

Matthew B. Miller, P.E., Chief, Hazards Study Branch, Technical Services Division, Mitigation Directorate, at (202) 646-3461, or (email) matt.miller@fema.gov.

SUPPLEMENTARY INFORMATION:

Background

Congress created the National Flood Insurance Program (NFIP) in 1968 to provide federally supported flood insurance coverage, which generally had not been available through private insurance companies. The program is based on an agreement between the Federal Government and each community that chooses to participate in the program. We make flood insurance available to property owners within a community provided that the community adopts and enforces floodplain management regulations that meet or exceed the minimum requirements of the NFIP set forth in part 60 of the NFIP Floodplain Management Regulations (44 CFR 60).

Identifying and mapping flood hazards. FEMA identifies and maps flood hazard areas by conducting flood hazard studies and publishing Flood Insurance Rate Maps (FIRMs). These flood hazard areas, referred to as Special Flood Hazard Areas (SFHAs), are based on a flood that would have a 1-percent chance of being equaled or exceeded in any given year (the 100-year flood or base flood). We determine the 1-percent annual chance flood, shown on the FIRMs as A Zones or V Zones, from information that we obtain through consultation with the community, floodplain topographic surveys, and detailed hydrologic and hydraulic analyses.

Floodplain management requirements. The NFIP minimum building and development regulations require that new or substantially improved buildings in A Zones have their lowest floor (including basement) elevated to or above the Base Flood Elevation (BFE) (the elevation of the 1-percent annual chance flood). Non-residential buildings in A Zones can either be dry floodproofed or elevated to the BFE. In V Zones, the bottom of the lowest horizontal structural member of the lowest floor of all new or substantially improved buildings must be elevated to or above the BFE. We have designed the NFIP floodplain management requirements at 44 CFR 60.3 to protect buildings constructed in floodplains from flood damages.

Freeboard and Floodplain Storage. Freeboard, generally expressed in terms of feet above a flood level for purposes of floodplain management, proves to be a successful method for reducing damage due to flooding and acts to compensate for the many uncertain factors that contribute to flood heights greater than the base flood. We recognize communities that incorporate the concept of freeboard in their permitting and planning processes through the Community Rating System, Project Impact, and insurance rating in general.

Local officials, developers, and the public at large should understand that the placement of fill in the SFHA could result in an increase in the base flood elevation by reducing the ability of the floodplain to convey and store floodwaters. Communities may want to consider prohibiting or limiting fill in floodplains, or requiring compensatory storage, and zero rise floodways as extra protection. Furthermore, development outside the SFHA but within the watershed can further increase the flood hazard by aggravating downstream flooding conditions. Therefore, FEMA will continue to encourage local officials, planners, design professionals, and developers to consider the long term benefits of elevating above the published base flood elevation when constructing projects in and near the SFHA.

Local responsibility. When a community joins the NFIP, it must initially adopt a resolution or ordinance that expresses a commitment to recognize and evaluate flood hazards in all official actions and to take such other official action as reasonably necessary to carry out the objectives of the program [44 CFR 59.22(a)(8)]. This is in addition to the general requirement that the community take into account flood hazards to the extent that they are known in all official actions relating to land management and use [44 CFR 60.1(c)]. Furthermore, all communities participating in the NFIP must “determine whether proposed building sites will be reasonably safe from flooding” [44 CFR 60.3(a)(3)]. This proposed rule emphasizes the role and responsibility of the community in permitting development and ensuring that areas within their jurisdiction are reasonably safe from flood hazards.

Flood insurance. The National Flood Insurance Act of 1968 requires that we charge full actuarial rates reflecting the complete flood risk to buildings built or substantially improved on or after the effective date of the initial FIRM for the community or after December 31, 1974, whichever is later, so that the risks associated with buildings in flood prone areas are borne by those located in such areas and not by the taxpayers at large. We refer to these buildings as Post-FIRM. The NFIP bases flood insurance rates for new construction on the degree of the flood risk reflected by the flood risk zone on the FIRM. Flood insurance rates also take into account a number of other factors including the elevation of the lowest floor above or below the BFE, type of building, and the existence of a basement or an enclosure.

Mandatory purchase of insurance. The Flood Disaster Protection Act of 1973 and the National Flood Insurance Reform Act of 1994 mandate the purchase of flood insurance as a condition of Federal or federally-related financial assistance for acquisition or construction of buildings in SFHAs of any community. The two Acts prohibit Federal agency lenders, such as the Small Business Administration, United States Department of Agriculture's Rural Housing Service, and Government-Sponsored Enterprises for Housing (Freddie Mac and Fannie Mae) from making, guaranteeing, or purchasing a loan secured by improved real estate or mobile home(s) in an SFHA of a participating community, unless flood insurance has been purchased and maintained during the term of the loan. The Acts also prohibit federally-regulated lenders from making, extending, or renewing any loan secured by improved real estate located in the SFHA in a participating community unless the secured property and any personal property securing the loan is covered by flood insurance. Federal financial assistance may not be provided in the SFHAs of non-participating communities.

Need for Proposed Rule

We revise NFIP flood maps for a number of reasons, such as the availability of improved techniques for assessing the flood risk, changes in the physical condition of the floodplain or watershed, or as additional data become available to improve the identification of flood hazards. The requirements for revising the FIRMs are established in the NFIP Regulations at 44 CFR Part 65, Identification and Mapping of Special Hazard Areas. We can also revise a FIRM when property owners, whose land is in a SFHA and the elevation is below the BFE, request a map change as a result of grading and filling their site to raise the level of the land above the 1-percent annual chance flood level. The criteria for determining whether to remove unimproved land or land with structures from the SFHA by raising ground elevations using engineered earthen fill are established in section 65.5. If the criteria under section 65.5 are met, we will issue a Letter of Map Revision Based on Fill (also referred to as a LOMR-F).

Specifically, unimproved land (land without a structure) can be removed from the SFHA under 44 CFR 65.5(a)(3) if the ground elevations of the entire legally defined parcel of land are at or above the elevation of the base flood. Land that is removed under paragraph 65.5(a)(3) is no longer subject to the NFIP floodplain management requirements at 44 CFR 60.3, which includes the requirement that the lowest floor (including basement) be elevated to or above the BFE. In addition, future structures placed on this unimproved land would not be subject to the mandatory flood insurance purchase requirement of the NFIP.

When a structure is involved (see 64 FR 47813, September 1, 1999), we previously determined whether it could be removed from the SFHA under 44 CFR 65.5(a)(4) by comparing the elevation of the lowest floor (including basement) and the elevation of the lowest adjacent grade with the elevation of the base flood. If the entire structure and the lowest adjacent grade were at or above the elevation of the base flood, the structure was removed from the SFHA. Once we issue a LOMR-F, the NFIP floodplain management requirements at 44 CFR 60.3 and the mandatory flood insurance purchase requirement of the NFIP no longer apply. However, if the structure involved did not meet the lowest floor and lowest adjacent grade criteria, the structure was not removed from the SFHA, thus it remained subject to the NFIP floodplain management requirements and the mandatory flood insurance purchase requirement.

These regulations have caused confusion for State and local floodplain managers and permitting officials. This confusion stems from the fact that buildings constructed on fill in areas removed from the SFHA under paragraph 65.5(a)(3) are not required to have their lowest floor (including basement) elevated above the BFE. However, buildings constructed on fill in areas not previously removed from the SFHA under paragraph 65.5(a)(3) must have their lowest floors elevated to or above the base flood before they can be removed from the SFHA as outlined in paragraph 65.5(a)(4).

We are concerned that this confusion may lead to unwise construction near floodplains and that structures built on land removed from the SFHA under section 65.5(a)(3) may be subject to residual flood damages during the base flood. The risk to structures built in these areas will vary depending the soil conditions at the site, the location of the structure relative to the flooding source, and whether the structure has a basement below the BFE. Therefore, to eliminate this confusion, we propose to revise portions of 44 CFR 65.2, 65.5, and 65.6(a) to reinforce the existing requirements of 44 CFR 60.3 and to ensure land and structures removed from the SFHA based on fill are reasonably safe from flooding during the base flood.

Proposed Revised Procedures

We would process all LOMR-F requests received after the date of the final rule as follows (these procedures would apply to single and multi-lot LOMR-F requests, which may involve one structure or multiple structures):

• Paragraph 65.5(a)(3) would apply to requests to remove from the SFHA land that is elevated by placement of engineered fill, whether structures exist or not.
• We would delete paragraph 65.5(a)(4) and in its place would require that a local official assure that the land or structure to be removed from the SFHA is “reasonably safe from flooding” as currently required in section 60.3(a).
• A local community's determination that land or a structure is “reasonably safe from flooding” must consider best engineering practices, and analyses that demonstrate that risk from the base flood would be mitigated must support the determination. Depending on the circumstances, communities may wish to require that the applicant perform these analyses and that a registered design professional must certify the analyses, particularly for construction below the base flood elevation.
• The Director may request supporting documentation regarding the decision process leading to the conclusion that the land or structure to be removed from the SFHA is reasonably safe from flooding.
• We would provide technical guidance to local officials regarding standard fill placement and building practices when avoiding development in the floodplain is unavoidable. The guidance would give local officials the ability to require that all fill be adequately protected from the forces of erosion, scour, or differential settlement. It would also encourage local officials to require elevation above the base flood. In addition to existing guidance, we propose to publish a Technical Bulletin (FIA-TB-10), entitled “Ensuring that Structures Built in or Near Special Flood Hazard Areas Are Reasonably Safe From Flooding” to provide further guidance to communities and design professionals in the implementation of this proposed rule. A copy of proposed TB #10 can be obtained either by downloading it from FEMA's web site at www.fema.gov/mit/techbul.htm or by contacting FEMA's publication distribution facility at 1-800-480-2520 and requesting a copy.
• If we learn that the community has not met the minimum floodplain management requirements of section 60.3, we could take action to remedy the violation and we could hold the request to revise the map in abeyance. This includes the requirement that residential structures in mapped SFHAs be built with their lowest floors (including basement) above the base flood.
• We would not actively review previously issued determinations under section 65.5 for conformity with these revised procedures. We would, however, review previously denied applications for a LOMR-F processed under paragraph 65.5(a)(4) upon written request.
• New LOMR-F requests and requests for LOMR-F redeterminations would be subject to the current fee schedule established in 44 CFR part 72.
• We would monitor the effectiveness of this rule change. Factors considered would include: ease of implementation, appropriateness of supporting engineering analyses, impact on floodplain management practices at the State and local level, and effectiveness in mitigating against flood loses. Within one year after we publish the final rule, we plan to re-evaluate this decision to determine whether changes to these or other related rules are warranted.

Comment Period Exception

Under 44 CFR 1.4(e) it is our normal policy to afford the public at least 60 days to submit comments on a proposed rule, unless the Director makes an exception and explains the reasons for the exception. The Director makes an exception to the 60-day comment policy for this proposed rule on the grounds that the rule is a clarification of existing policy and that it is in the public interest of remove the confusion and inconsistency that exists in the current rule, to remove the rule's adverse impact on property owners, and to enhance the ability of local officials to make sound floodplain management decisions as soon as possible consistent with the requirements of the Administrative Procedure Act.

National Environmental Policy Act

FEMA will not prepare an environmental analysis under NEPA since this rule would address an apparent administrative inconsistency that has no bearing on building practices or on the built or natural environment. This proposed rule would remove the current distinction between fill placed in an SFHA containing structures and fill placed in an SFHA without structures, both of which are allowable under current laws and regulations governing participation in the National Flood Insurance Program. Removing this distinction would resolve an apparent inconsistency in the floodprone status of a subset of structures built on fill within the SFHA. These apparent inconsistencies result from differences in the administrative processes followed by communities that permit development in floodplains rather than from physical differences in the built environment. We will continue to permit earthen fill and other types of development within the SFHA when applicable, and we will continue to require residential structures built in identified flood hazard areas to have their lowest floor (including basement) elevated to or above the base flood.

Regulatory Planning and Review

We have prepared and reviewed this proposed rule under the provisions of E.O. 12866, Regulatory Planning and Review. Under Executive Order 12866, 58 FR 51735, October 4, 1993, a significant regulatory action is subject to OMB review and the requirements of the Executive Order. The Executive Order defines “significant regulatory action” as one that is likely to result in a rule that may:

(1) have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities;

(2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;

(3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or

(4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

This proposed rule would change the criteria that we would use to determine whether we can issue a LOMR-F to remove unimproved land or land with structures from the Special Flood Hazard Area (SFHA) by raising ground elevations using engineered earthen fill. We know of no conditions that would qualify the rule as a “significant regulatory action” within the definition of section 3(f) of the Executive Order. To the extent possible this proposed rule adheres to the principles of regulation as set forth in Executive Order 12866. This proposed rule has been reviewed by the Office of Management and Budget under the provisions of Executive Order 12866.

Paperwork Reduction Act

In accordance with the provisions of the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq., the Office of Management and Budget (OMB) approved the collections of information applicable to this proposed rule: OMB Number 3067-0147, Report to Submit Technical or Scientific Data to Correct Mapping Deficiencies Unrelated to Community-Wide Elevation Determinations (Amendments & Revisions to National Flood Insurance Program Map).

Following is a summary of how each form will be used:

(a) FEMA Form 81-87. Property Information. This form describes the location of the property, what is being requested, and what data are required to support the request.

(b) FEMA Form 81-87E. Credit Card Information. This form outlines the information needed to process a request when the requester is paying by credit card.

(c) FEMA Form 82-87A. Elevation Information. This form indicates what the Base Flood (100-year) Elevation (BFE) for the property is, how the BFE was determined, the lowest ground elevation on the property, and/or the elevation of the lowest adjacent grade to any structures on the property. This information is required for FEMA to determine whether the property that is being requested to be removed from the SFHA is above the BFE.

(d) FEMA Form 81-87C. Community Acknowledgment of Requests Involving Fill. 44 CFR 65.5(a)(6) requires that if fill is placed to remove an area from the SFHA then the community must acknowledge the request. This form ensures that the requester fulfills this requirement before submitting the request to FEMA.

(e) FEMA Form 81-87D. Summary of Elevations—Individual Lot Breakdown. This form is used in conjunction with the Elevation Information Form for requests involving multiple lots or structures. It provides a table to allow the required submitted data to be presented in a manner for quick and efficient review.

The estimated burden on individual property owners is:

The number of requesters will vary from year to year, as we have no control over the number of people who will seek to have determinations made for their properties. For the purposes of this rule we estimate the following annual burdens:

Regulatory Flexibility Act, 5 U.S.C. 601

Under the Regulatory Flexibility Act agencies must consider the impact of their rulemakings on “small entities” (small businesses, small organizations and local governments). When an agency is required by 5 U.S.C. 553 to publish a notice of proposed rulemaking, a regulatory flexibility analysis is required for both the notice and the final rule if the rulemaking could “have a significant economic impact on a substantial number of small entities.” The Act also provides that if a regulatory flexibility analysis is not required, the agency must certify in the rulemaking document that the rulemaking will not “have a significant economic impact on a substantial number of small entities.”

For the reasons that follow, I certify that a regulatory flexibility analysis is not required for this rule because it would not have a significant economic impact on a substantial number of small entities. This proposed rule is a clarification of existing policy and we propose the rule to remove the confusion and inconsistency that exists in the current rule. We expect that the proposed rule would remove the current rule's adverse impact on property owners, including small entities. This proposed rule would remove apparent inconsistencies in the current rule and would provide a single, uniform set of floodplain management criteria applicable to all applicable structures, regardless of when an area is removed from the SFHA. We expect the proposed rule to enhance the ability of local officials to make sound floodplain management decisions more readily than under the current rule. We also expect that the proposed rule will reduce the administrative burden on property owners, including small entities. We further expect that the rule may reduce certain building costs, without increasing the risks of flooding either to the owners or to the National Flood Insurance Program.

Executive Order 12612, Federalism

Executive Order 13132, Federalism, dated August 4, 1999, sets forth principles and criteria that agencies must adhere to in formulating and implementing policies that have federalism implications, that is, regulations that have substantial direct effects on the States, or on the distribution of power and responsibilities among the various levels of government. Federal agencies must closely examine the statutory authority supporting any action that would limit the policymaking discretion of the States, and to the extent practicable, must consult with State and local officials before implementing any such action.

We have reviewed this proposed rule under E.O.13132 and have concluded that the rule does not have federalism implications as defined by the Executive Order. As noted under Regulatory Planning and Review, this proposed rule would change the criteria that we would use to determine whether we can issue a LOMR-F to remove unimproved land or land with structures from the Special Flood Hazard Area (SFHA) by raising ground elevations using engineered earthen fill. We know of no substantial direct effects on the States, or on the distribution of power and responsibilities among the various levels of government that would result from this proposed rule.

The Office of Management and Budget has reviewed this rule under the provisions of Executive Order 13132.

List of Subjects in 44 CFR Part 65

• Flood insurance
• Flood insurance rate maps
• Reporting and recordkeeping requirements

Accordingly, we propose to amend Part 65 of Chapter I, Subchapter B, of Title 44 of the Code of Federal Regulations as follows:

PART 65—IDENTIFICATION AND MAPPING OF SPECIAL HAZARD AREAS

1. The authority citation for part 65 continues to read as follows:

Authority: 42 U.S.C. 4001 et seq., Reorganization Plan No. 3 of 1978, 43 FR 41943, 3 CFR, 1978 Comp., p. 329; E.O 12127 of Mar. 31, 1979, 44 FR 19367, 3 CFR, 1979 Comp., p. 376.

2. Section 65.2 is amended by adding paragraph (c) to read as follows: