Dive Brief:
- The Federal Emergency Management Agency won’t enforce a rule that’s intended to curb repeated damage to buildings in flood risk areas, The New York Times says in a report it published last week.
- The decision not to enforce the Federal Risk Management Standard has not been announced but is outlined in a Feb. 4 memo from FEMA Chief Counsel Adrian Sevier that The New York Times said it reviewed.
- Sevier’s memo, and a statement from FEMA to the Times, says the policy shift carries out an executive order signed by President Trump that imposes a review on the agency’s aid programs. The flood rule, the agency says in the statement, “is under review per the president’s executive order.”
Dive Insight:
The Biden administration finalized the Federal Flood Risk Management Standard last year. It requires any building that receives public funds to be relocated, elevated or otherwise made flood safe if it’s subject to flooding and receives FEMA assistance to rebuild.
The goal is to stop directing federal funding to buildings that are at risk of repeated flooding. “More specifically,” FEMA says, “it requires agencies to determine specific federal building or project dimensions – that is, how high and how wide and how expansive a building or project should be – in order to manage and mitigate any current or potential flood risks.”
“Taking forward-looking, effective steps to increase resilience before disaster strikes will save lives, property, critical infrastructure and taxpayer money,” then-Homeland Security Secretary Alejandro Mayorkas said when the rule was released.
In his memo, Sevier says the rule might be revoked or it might be amended, but in the meantime it’s not going to be enforced. “This pause must be implemented immediately while FEMA takes action to rescind or amend the policies,” said Sevier, according to the Times.
Critics call the pause misguided if the goal is to save the federal government money.
“Wasteful spending is when you’re spending money on repairing something you know is going to get damaged again,” Chad Berginnis, executive director of the Association of State Floodplain Managers, told the Times.
Neither FEMA nor ASFM immediately responded to a request from Facilities Dive for comment.
Legal scholars say FEMA is inviting a challenge on whether it has the authority not to enforce the rule while it’s under review.
If it decides to rescind or modify the rule, it must publish the changes and make them available for public comment. But in the meantime, the rule remains in effect, David Super, a visiting law professor at Yale University who specializes in administrative law, told the Times.
“The president is pursuing an extremely ambitious constitutional agenda to invalidate legislation regulating the executive branch,” Super said.
