The Federal Emergency Management Agency (FEMA) is proposing to rewrite the longstanding 100 year floodplain standard for federally funded projects such that most building would now have to be 2 feet freeboard.

In the name of resilience, reliability and green this proposed regulation will result in significant additional first costs for affected building.

FEMA is specifically proposing to amend 44 CFR part 9 “Floodplain Management and Protection of Wetlands” and issue a supplementary policy to implement the Federal Flood Risk Management Standard that was established by Executive Order 13690.

The nomenclature is important. It is a common misunderstanding that a 100 year flood is likely to occur only once in 100 years. A 100 year flood is a flood event that has a 1% probability of occurring in any given year. (In fact, there is approximately a 63.4% chance of one or more 100 year floods occurring in any 100 year period.)

Freeboard is a factor usually expressed in feet above a flood level for purposes of building above a floodplain. Today, building codes in many jurisdictions require construction be 1 foot freeboard.

And while there is much contained in the 37 page proposed rule as published in the Federal Register on April 22, 2016, that goes far beyond the 1973 National Flood Insurance Program purposes of protecting people and property from flood damage, now elevating the floodplain to a natural resource worthy of protection, there are 4 options proposed for federally funded building projects:

  1. construct 2 feet freeboard (above the 100 year floodplain); or 3 feet freeboard for “critical actions” (e.g., chemical storage facilities, hospitals, housing for the elderly, data centers, etc.); or
  2. construct above the 2% annual chance flood approach (also known as the 500 year flood); or
  3. construct “utilizing the best available, actionable hydrologic and hydraulic data and methods that integrate current and future changes in flooding based on climate science;” or
  4. construct above “the elevation and flood hazard area that result from using any other method identified” by FEMA.

Each of the options is described in great detail in the proposed rule.

FEMA makes the cost benefit analysis argument,

The up-front costs are generally only about 0.25 to 1.5 percent of the total construction costs for each foot of freeboard.

For example, adding 2 feet of freeboard to a new home might add $20 a month to the mortgage payment, or $240 per year. The resulting flood insurance savings could be more than $1,000 a year for a building in Zone AE (for instance, in a riverine flood zone not affected by wave action) and $2,000 a year in Zone VE.

Arguably the accelerating rise in sea levels exacerbated by those portions of the U.S. coast that are sinking (including the Chesapeake Bay region) imperil continued habitation along the coastline and while this proposal to construct higher is no doubt less expensive than pumps and raising sea walls, what is the efficacy for the rest of the nation that does not live on a coast?

There is no single entity that controls building in a floodplain. In 2012, in the name of resilience then Maryland Governor Martin O’Malley signed the “Climate Change and Coast Smart Construction” Executive Order directing all state funded building be 2 foot freeboard.

Be clear, this proposed rule is not only “An Inconvenient Truth” scaring people by showing Florida disappearing under rising seas, but also will increase the cost of construction in many projects across the country. Issued in response to an Executive Order without Congressional authority, the rule reads more like something written by a cultural anthropologist than a scientist. In point of fact, the House of Representatives passed an appropriations bill in May (House Amendment 197 to H.R. 2028) that may defund the underlying Executive Order including this proposed rule as Executive branch overreach.

Comments on the proposed rule must be received no later than October 21, 2016.