HUD Proposes Rule Change to Comply with Federal Flood Risk Management Standard

November 14, 2016

On October 28, 2016, the U.S. Department of Housing and Urban Development (HUD) published a proposed update to certain building standards to better protect communities and taxpayer-funded investments from flooding. If accepted, this would be the first major change in federally subsidized building standards in nearly 40 years, as it responds to increased flooding and the potential effects of climate change. The new rules would add additional provisions to supplement HUD's existing floodplain regulations, and require a greater level of flood protection for both new construction and significant rehabilitation projects. HUD is confident that building to this new standard will increase flood resilience, reduce the risk of losses from floods, and minimize the impact of floods on residential dwellings across the country.

Background

Following the devastation caused by Superstorm Sandy in the northeast, new standards governing how federally funded reconstruction efforts had to be created. On January 30, 2015, President Obama signed an Executive Order (E.O. 13690) announcing that all federally funded reconstruction projects must meet a consistent flood risk reduction standard that takes into account risk from extreme weather events, sea level rise, and other impacts of climate change.

With this in mind, the Federal Emergency Management Agency, the U.S. Army Corps of Engineers, and HUD produced fact sheets in response to several frequently asked questions regarding the intended scope of the President's Federal Flood Risk Management Standard (FFRMS) and the anticipated impacts to many of the programs of these agencies.

Changes in Proposed Rule

To comply with President Obama's Executive Order and implement the FFRMS, HUD is issuing a proposed rule revising their regulations governing floodplain management. The proposed rule affects any projects receiving HUD assistance, financing, or insurance that involve new construction or substantial improvement, requiring that they be elevated two feet above the base flood elevation and that "critical actions1,"—such as hospitals, nursing homes, and police and fire stations—be elevated further.

This proposed rule also expands the floodplain to include the "FFRMS floodplain." For most residential and commercial structures, the FFRMS floodplain is defined as areas that are less than two feet above the 100-year floodplain. For critical actions, the FFRMS floodplain is defined to be the larger of either the 500-year floodplain or areas less than three feet above the 100-year floodplain. The new FFRMS floodplain expands the definition of the floodplain area both vertically (2—3 ft. above base flood elevation) and horizontally (based on the topography of the area).

This rule requires that any newly constructed (or substantially improved) structures be elevated to the FFRMS floodplain elevation or that mitigation methods be put in place to "flood proof" the structure to provide an equivalent level of protection. In addition, construction projects that lie within the new FFRMS floodplain must complete an 8-Step Process to determine how they will respond.

As a result of these changes, this rule will require that the lowest floor in any newly constructed (or substantially improved) structures be elevated at least two feet above the 100-year floodplain, which is a revision of the minimum property standards for one- to four-family housing for FHA mortgage insurance and low-rent public housing.

1A critical action is defined as any activity for which even a slight risk of flooding would be too great, because such flooding might result in loss of life, injury to persons, or damage to property.

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