Floodplain Changes and Executive Order 13690

Mike Shiflett

In 1978, the Carter administration implemented an executive order (EO 11988) that provided standards for Federal projects within a floodplain. Basically, EO 11988 was an attempt to curtail federal projects from being built within the floodplain, with the floodplain being defined by the 100-year flood limits. The 100-year flood limit was established as a mapping limit for insurance purposes, but has evolved over the years to be interpreted by the public as a safety zone, beyond which flooding and the associated dangers are not very likely. Of course we all know and realize, this 100-year base flood is not a safety zone.

Therefore, as further enticement to limit development of federal projects (i.e., limit federal expenses) within the floodplain, the Obama administration has proposed Executive Order 13690 to amend the previous EO. If enacted, EO 13690, referred to as Federal Flood Risk Management Standard, will put into place more stringent criteria for federal projects within the floodplain. The new EO 13690 risk standard will:

  • Encourage the use of natural features and nature-based approaches in the development of alternatives for Federal Actions
  • Provide a higher vertical elevation and corresponding floodplain
  • Use three approaches to determine the higher elevation and corresponding floodplain:
    • Climate-informed science approach, such as best-available hydrologic and hydraulic data to anticipate future changes in flooding based on climate science
    • Higher freeboard that may be 100-year flood level +2 or + 3 feet
    • 500-year flood elevation

If EO 13690 is implemented, your project could be impacted if you are improving or developing a floodplain area that requires federal permitting or includes federal dollars. HMGP grants would be subject to these standards as well as federally funded transportation projects. Entities that are responsible for maintaining and operating levee systems, particularly those participating in the Rehabilitation and Inspection program (U.S. Army Corps of Engineers), would be required to meet the requirements of EO 13690 when addressing potential alterations to the levee system. Both FEMA and USACE have stated that this update will not impact FEMA levee accreditation for mapping purposes, but that clarifying language is not written down, and has only been orally stated at the public Listening Sessions where FEMA solicited public input and comments.

Freese and Nichols attended the Listening Session held in Dallas on April 7, 2015, where FEMA clarified that the EO does not apply to private investment nor does it change the minimum ordinance standards for the NFIP. Insurance pricing and mapping standards are also not impacted by EO 13690.

EO 13690 is currently in draft form. FEMA has extended the comment period to May 6, 2015. To read about this proposed update and to comment, go to the Notice in Docket ID FEMA-2015-0006 on the Federal eRulemaking Portal and follow the instructions for commenting.