By Andrea Shaffer

Shortly before hurricane Helene and Milton, new FEMA floodplain rules were codified into law on September 9, 2024, that will massively limit rebuilding in many of the areas that were impacted by hurricanes. All properties in flood zones designated on FEMA flood maps, also known as Flood Insurance Rate Maps (FIRMs), are subject to floodplain management requirements. This includes properties that have been damaged by wind, hurricanes, flooding, fallen trees, or other factors. Essentially, many of the residential, commercial, and agricultural building structures might be deemed unbuildable based on the 1% Floodplain rule and the 500-year floodplain rule.  

The International Codes® (I-Codes®), is a family of codes developed and maintained by the International Code Council and shares common goals with the Federal Emergency Management Agency’s (FEMA) National Flood Insurance Program (NFIP). The ICC codes are building codes that focus primarily to ensure safe, sustainable, resilient, and affordable structures. Some communities categorize flood hazard areas as separate conservation zones, allowing only development that is compatible with open space, recreational uses, and public infrastructure and drainage.  

FEMA provided a corrective clarification for the September 9, 2024, new regulations regarding the new floodplain zones; specifically, the agency clarifies action following the analysis of practicable alternatives as follows; “the Agency shall not locate the proposed action in the floodplain as established by § 9.7(c) or in a wetland if a practicable alternative exists outside the floodplain or wetland.” The FEMA Federal Flood Risk Management Standard (FFRMS) requires resilience mitigation wetproofing measures to damaged agriculture structures. The FFRMS establishes the level to which a structure or facility must be resilient to future potential flooding. Resilience measures include using structural or nonstructural methods to reduce or prevent damage; elevating a structure; or, where appropriate, designing it to adapt to, withstand and rapidly recover from a flood event. 

Substantial Improvement and Substantial Damage Determination Rule (SI/SD)  

FEMA will rely on local floodplain administrators for FFRMS determinations, if available, for determining whether an action entails substantial improvement or work to address substantial damage. For communities that participate in the National Flood Insurance Program (NFIP), local officials will determine whether activities within the 1% floodplain trigger rule incurred substantial damage or substantial improvement as part of their floodplain management responsibilities. The 1% floodplain trigger, also known as the 100-year flood or base flood, is the likelihood that an area will experience a major flood event in any given year. In cases where local officials are unavailable or unable to make a determination, FEMA will make SI/SD determinations based on the FFRMS. FEMA will determine that an action involving work on a structure constitutes SI/SD when the cost equals or exceeds 50% of the market value of the structure. Walled and roofed agricultural structures used exclusively for agricultural purposes fall under the 1% trigger rule as well.  

Floodplain Management Requirements for Agricultural Structures and Accessory Structures 

The FEMA floodplain management clarifies and refines the requirements that apply to certain agricultural structures and accessory structures in Special Flood Hazard Areas (SFHAs). These requirements are set forth by the Federal Emergency Management Agency (FEMA). Natural and beneficial values of floodplains and wetlands means features or resources that provide environmental and societal benefits. Water and biological resources are often referred to as “natural function of floodplains and wetlands.”  Agricultural is under) (44 CFR § 9.4) and is defined as cultivated resource values (creating rich soils for agriculture, aquaculture, and forestry). The following definitions shall apply throughout this regulation. 

1. 0.2 percent annual chance flood elevation means the elevation to which floodwater is anticipated to rise during the 0.2 percent annual chance flood (also known as the 500-year flood). 

2. 1 percent annual chance floodplain means the area subject to flooding by the 1 percent annual chance flood (also known as the 100-year floodplain or base floodplain). 

Except as otherwise provided in § 9.5 (c), (d), (f), and (g) regarding categories of partial or total exclusion when proposing an action, the Agency shall apply the 8-step decision-making process. FEMA shall:  

Step 1. Determine whether the proposed action is in a wetland and/or the 100-year foodplain (500-year foodplain for critical actions); and whether it has the potential to affect or be affected by a foodplain or wetland under § 9.7). Section § 9.7 determines the base floodplain (the Agency shall substitute the 500-year floodplain for the base floodplain where the action being proposed involves a critical action (see step 7). Determination of action proposal includes action to avoid floodplain and wetland locations unless they are the only practicable alternatives; and 

Step 2. Notify the public at the earliest possible time of the intent to conduct an action in a foodplain or wetland and involve the affected and interested public in the decision-making process (see § 9.8). Under § 9.8, FEMA is required to provide adequate public notices and opportunity for review and comment at the earliest possible time and throughout the decision-making process; and upon completion of the process and provide the public with an accounting of its final decisions. 

Step 3. Identify and evaluate practicable alternatives to locating the proposed action in a foodplain or wetland (including alternative sites, actions and the “no action” option, see section (§ 9.9). This section expands on the overall new floodplain regulation to clarify and emphasize the requirements to avoid floodplains and wetlands unless there is no practicable alternative. If a practicable alternative exists outside the foodplain or wetland FEMA must locate the action at the alternative site. 

Step 4. Identify the potential direct and indirect impacts associated with the occupancy or modifcation of foodplains and wetlands and the potential direct and indirect support of foodplain and wetland development that could result from the proposed action (see § 9.10). This section declares the Agency shall identify the potential direct and indirect adverse impacts associated with the occupancy and modification of floodplains and wetlands and the potential direct and indirect support of floodplain and wetland development that could result from the proposed action.  

Step 5. Minimize the potential adverse impacts and support to or within foodplains and wetlands to be identified under Step 4, restore and preserve the natural and beneficial values served by foodplains, and preserve and enhance the natural and beneficial values served by wetlands (see § 9.11). This section expands upon the directives set out the mitigative actions required if the preliminary determination is made to conduct an action that affects or is in a floodplain or wetland. The Agency shall apply, at a minimum, the following standards to its actions to comply with the requirements (except as provided in § 9.5(c), (d), and (g) regarding categories of partial or total exclusion). Any Agency action to which the following specific requirements do not apply, shall nevertheless be subject to the full 8-step process including the general requirement to minimize harm to and within floodplains.   

Step 6. Reevaluate the proposed action to determine first, if it is still practicable in light of its exposure to flood hazards, the extent to which it will aggravate the hazards to others, and its potential to disrupt foodplain and wetland values and second, if alternatives preliminarily rejected at Step 3 are practicable in light of the information gained in Steps 4 and 5. FEMA shall not act in a foodplain or wetland unless it is the only practicable location (§ 9.9)  This section states there shall be no new construction or substantial improvement in a floodway and no new construction in a coastal high hazard area, except for:  (i) A functionally dependent use; or (ii) A structure or facility which facilitates an open space use.  There shall be no encroachments, including but not limited to fill, new construction, substantial improvements of structures or facilities, or other development within a designated regulatory floodway that would result in any increase in flood elevation within the community during the occurrence of the 1 percent annual chance (base) flood discharge. 

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Restore and preserve.  

(1) For any action taken by the Agency which affects the floodplain or wetland, and which has resulted in, or will result in, harm to the floodplain or wetland, the Agency shall act to restore and preserve the natural and beneficial values served by floodplains and wetlands. 

(2) Where floodplain or wetland values have been degraded by the proposed action, the Agency shall identify, evaluate, and implement measures to restore the values. 

(3) If an action will result in harm to or within the floodplain or wetland, the Agency shall design or modify the action to preserve as much of the natural and beneficial floodplain and wetland values as is possible. 

Step 7. This step pertains to critical infrastructure areas managed by the Cybersecurity and Infrastructure Security Agency (CISA). Prepare and provide the public with a finding and public explanation of any final decision that the foodplain or wetland is the only practicable alternative ( § 9.12).  As defined by CISA, “some activities and facilities, even a slight chance of flooding is too great a threat. Typical critical facilities include hospitals, fire stations, police stations, storage of critical records, and similar facilities. These facilities should be given special consideration when formulating regulatory alternatives and floodplain management plans. A critical facility should not be located in a floodplain if at all possible. If a critical facility must be located in a floodplain it should be provided a higher level of protection so that it can continue to function and provide services after the flood. Communities should develop emergency plans to continue to provide these services during the flood. 

Under Executive Order 11988, Floodplain Management, Federal agencies funding and/or permitting critical facilities are required to avoid the 0.2 percent (500-year) floodplain or protect the facilities to the 0.2 percent chance flood level. 

Consistent with the final rule that is also published in the Federal Register , this policy requires that FEMA determine the appropriate vertical flood elevation and corresponding horizontal FFRMS floodplain for Actions Subject to the FFRMS using either the Climate Informed Science Approach (CISA), the Freeboard Value Approach (FVA), or the 0.2 Percent Annual Chance Flood Approach (0.2PFA). Under the final policy, FEMA will determine the FFRMS flood elevation and corresponding FFRMS floodplain according to CISA for all locations where CISA is available where the best-available, actionable hydrologic and hydraulic data and methods that integrate current and future changes in flooding based on climate science exist. When using CISA, for non-critical actions the FFRMS floodplain will be at least as restrictive as the 1% annual chance (AC) flood elevation and corresponding horizontal floodplain,^[1] and for critical actions the FFRMS floodplain will be at least as restrictive as the 0.2% AC flood elevation and corresponding horizontal floodplain. 

Step 8. Review the implementation and post-implementation phases of the proposed action to ensure that the requirements stated in § 9.11 are fully implemented. Oversight responsibility shall be integrated into existing processes. There shall be no encroachments, including but not limited to fill, new construction, substantial improvements of structures or facilities, or other development within a designated regulatory floodway that would result in any increase in flood elevation within the community during the occurrence of the 1 percent annual chance (base) flood discharge. Until a regulatory floodway is designated, no fill, new construction, substantial improvements, or other development shall be permitted within the 1 percent annual chance (base) floodplain unless it is demonstrated that the cumulative effect of the proposed development, when combined with all other existing and anticipated development, will not increase the water surface elevation of the 1 percent annual chance (base) flood more than the amount designated by the NFIP or the community, whichever is most restrictive. 

Communities should access the FEMA Flood Map Service Center (MSC) to find all flood hazard mapping zones. Lastly, I recommend working with local administrators, your local municipality, state authorities and commission a lawyer if your property is impacted by the new regulations especially if the is risk to losing your property whether because of financial impact or authorities determine the property will not be reconstituted to its original form.  https://msc.fema.gov/portal/home 

In conclusion, I encourage the agriculture community to access the new FEMA Flood Map Service Center (MSC) to find all flood hazard mapping in your community. Lastly, because of the .02 percent and 1 percent rule, many areas will be deemed unbuildable and will be turned into wetlands, I recommend working with local administrators, your local municipality, state authorities and commission a lawyer if your property is impacted by the new regulations especially if there is a risk of losing your property whether because of financial impact or authorities determine the property will not be reconstituted to its original form and turned over as a wetland.