Congressional Research Service: 'Building Resilience – FEMA's Building Codes Policies & Considerations for Congress' (Part 2 of 2)
(Continued from Part 1 of 2)
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Code Requirements: Authorities, Developments, and Variations across Programs
The Stafford Act, the National Flood Insurance Act, federal regulations, and
These variations have generated criticism. ASCE has urged
Some of
Building Code Development, Adoption, Enforcement: FEMA Assistance and Incentives
Several
Public Assistance
DRRA amended the Stafford Act to authorize assistance for SLTT governments to administer and enforce building codes./110 In 2019,
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107
108 For example,
109
110 DRRA Sections 1206(a)-(b), as they amend Stafford Act Sections 402 and 406;
111
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Table 2. FEMA
Sources: Compiled by CRS using
a.
b. Stafford Act 406(e), as amended by Disaster Recovery Reform Act (DRRA) Section 1235(b), 42 U.S.C. Sec.5172(e).
c.
d.
e. 44 C.F.R. Sec.59.1 defines substantial improvement as any reconstruction, rehabilitation, addition, or other improvement of a structure, the cost of which equals or exceeds 50% of the market value of the structure before the "start of construction" of the improvement. This term includes structures which have incurred "substantial damage," regardless of the actual repair work performed. Floodplain management requirements for new construction apply to substantial improvements. 44 C.F.R. Sec.59.1 defines substantial damage as damage of any origin sustained by a structure whereby the cost of restoring the structure to its before-damaged condition would equal or exceed 50% of the market value of the structure before the damage occurred. Note that these requirements are not restricted to damage caused by flooding; a property in an SFHA damaged by fire would still trigger the substantial damage requirement.
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Hazard Mitigation Assistance
Requirements related to building codes for Hazard Mitigation Assistance (HMA) programs (i.e., the Hazard Mitigation Grant Program, the Flood Mitigation Grant Program, the Safeguarding Tomorrow Revolving Loan Fund Program, and
Close-out/113 requirements for all HMA grants include comments and documentation to support that the project was completed in compliance with all required permits and building codes and standards (if applicable)./114 However, there is no explicit requirement for proof of compliance with building code requirements, in contrast to PA, where noncompliance can result in potential denial or de-obligation of PA funding for a facility./115
Hazard Mitigation Grant Program
The Hazard Mitigation Grant Program (HMGP) is authorized by Stafford Act Section 404 - Hazard Mitigation,/116 with the objective of ensuring that the opportunity to take critical mitigation measures is not lost during the reconstruction process following a disaster. There is no mention of building code requirements for HMGP in Stafford Act Section 404, nor in HMGP regulations./117
Safeguarding Tomorrow Revolving Loan Fund Program
Hazard mitigation loans are available through the Safeguarding Tomorrow Revolving Loan Fund Program (STRLF).118 The STRLF program was created by the STORM Act (Safeguarding Tomorrow through Ongoing Risk Mitigation Act, P.L. 116-284), which amended the Stafford Act by authorizing
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112 Mitigation reconstruction is the construction of an improved, elevated structure that conforms to the latest building codes on the same site where an existing structure and/or foundation has been partially or completely demolished or destroyed. See
113 Close-out is the end of the grant process, when the award recipient must submit the final financial and programmatic reports. See Grants.Gov, Grants 101, Post Award Phase, https://www.grants.gov/learn-grants/grants-101/post-awardphase.html.
114
115
116 42 U.S.C. Sec.5170c.
117 44 C.F.R. Sec.206 Subpart N--Hazard Mitigation Grant Program.
118 42 U.S.C. Sec.5135.
119 A revolving loan fund (RLF) is a self-replenishing financial mechanism that starts with a base level of capital, often consisting of grants from the federal government or a state, or private investment. RLFs can make loans targeted to specific types of borrowers or for specific types of activities, and are designed to use loan repayments to recapitalize the fund and therefore make additional loans. This may create an ongoing source of funding and potentially reduce the need for annual appropriations.
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Funds made available through the STORM Act may be used to assist homeowners, businesses, certain nonprofit organizations, and communities to reduce risk in order to decrease the loss of life and property, the cost of flood insurance, and federal disaster payments. The program is intended to provide states with funding that will help them carry out their own hazard mitigation projects./120 Eligible entities include states and territories, and the tribal governments that received a major disaster declaration pursuant to Section 401 of the Stafford Act./121 As a new program with its first funding round in FY2023, the STRLF is not mentioned in
Flood Mitigation Assistance Grant Program
The Flood Mitigation Assistance (FMA) grant program is another pre-disaster mitigation funding program operated by
Building Resilient Infrastructure and Communities
DRRA Section 1234 amended Section 203 of the Stafford Act - Predisaster Hazard Mitigation/127 to allow use of pre-disaster mitigation funding to establish and carry out enforcement activities and implement the latest version of consensus-based codes./128 Section 1234 also expanded the criteria to be considered in awarding pre-disaster mitigation funds, including the extent to which the applicants have adopted hazard-resistant building codes and design standards./129
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120
121 42 U.S.C. Sec.5170.
122
123 42 U.S.C. Sec.4104c.
124 42 U.S.C. Sec.4121(a)(7) defines repetitive loss structure as a structure covered by a contract for flood insurance that (1) has incurred flood-related damage on two occasions, in which the cost of repair, on the average, equaled or exceeded 25% of the value of the structure at the time of each such flood event; and (2) at the time of the second incidence of flood-related damage, the contract for flood insurance contains increased cost of compliance coverage.
125 Severe repetitive loss properties are those that have incurred four or more claim payments exceeding
126 44 C.F.R. Part 77 - Flood Mitigation Grants.
127 42 U.S.C. Sec.5133.
128 42 U.S.C. Sec.5133(e)(1)(B)(iv).
129 42 U.S.C. Sec.5133(g)(4).
130
131 42 U.S.C. Sec.5133.
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Figure 2. State and Territory
Source: Figure provided by FEMA Congressional Affairs Staff,
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For FY2023,
BRIC Direct Technical Assistance
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132 Ibid., p. 3.
133 Ibid., pp. 3-6.
134 See, for example,
135
136
137 See, for example, Senator
138
139 Ibid., p. 44.
140
141 In FY2022 BRIC applications, applications for Direct Technical Assistance were (1) are noted in E.O. 14008; (2) have demonstrated that the community, or areas within the community, have a
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The establishment, adoption, and enforcement of building codes are eligible capability- and capacity-building activities for DTA./142
National Flood Insurance Program
DRRA Section 1206(a) amended Stafford Act Section 402 - General Federal Assistance/146 to allow state and local governments to use general federal assistance funds for the administration and enforcement of building codes and floodplain management ordinances, including inspections for substantial damage compliance./147 If a building in an SFHA is determined to be substantially damaged, it must be brought into compliance with local floodplain management standards. Local communities can require the building to be rebuilt to current floodplain management requirements even if the property previously did not need to do so.
The NFIP Community Rating System (CRS) is a voluntary incentive-based program that rewards communities for adopting floodplain management practices to a higher standard than the NFIP minimum standards by providing reduced-cost flood insurance premiums to policyholders in the community./148 The CRS program, as authorized by law, is intended to incentivize the reduction of flood and erosion risk, for example through community adoption of hazard-resistant building codes to exceed the minimum NFIP requirements, as well as the adoption of more effective measures to protect natural and beneficial floodplain functions./149
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142
143
144
145 Email from FEMA Congressional Affairs Staff,
146 42 U.S.C. Sec.5170a.
147 44 C.F.R. Sec.59.1 defines substantial damage as damage of any origin sustained by a structure whereby the cost of restoring the structure to its before-damaged condition would equal or exceed 50% of the market value of the structure before the damage occurred. 44 C.F.R. Sec.59.1 defines substantial improvement as any reconstruction, rehabilitation, addition, or other improvement of a structure, the cost of which equals or exceeds 50% of the market value of the structure before the start of construction of the improvement. This term includes structures which have incurred "substantial damage," regardless of the actual repair work performed. Floodplain management requirements for new construction apply to substantial improvements.
148 42 U.S.C. Sec.4022(b)(1).
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Table 3. FEMA Incentives and Assistance for SLTT Building Code Work
Sources: Compiled by CRS from statutes, HMAPPG, and Addendum to the 2017 Community Rating System Coordinators' Manual.
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149 42 U.S.C. Sec.4022(b)(1).
150
151 42 U.S.C. Sec.Sec.5170a and 5172(a)(2)(D).
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Additional FEMA Technical Assistance
Since its founding,
Research and Development
Several statutes direct
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152
153 Section 3 of P.L. 114-52;
154 Related losses (e.g., avoided displacement of workers) were not included in the study.
155
156 Ibid., ES-6.
157 Ibid.
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Multiagency Coordination
Public Awareness
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158
159
160 Ibid.
161 MitFLG,
162
163
164 FLASH, No Code. No Confidence, https://inspecttoprotect.org/.
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Monitoring
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Figure 3. Building Code Adoption Portal
Source:
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Considerations for
Building Codes and Equity
Socially vulnerable individuals and communities experience particular hazard risks due to substandard building codes./168
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165
166
167
168 See, for example,
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They are more likely to live in poor-quality housing, which is more vulnerable to disaster-related damages. Furthermore, socially vulnerable populations are more likely to experience financial hardship related to a disaster, yet are less likely to be able to cover emergency costs. Communities with fewer resources may also suffer disproportionate effects of climate change./169
Despite this, SLTTs representing low-income and socially vulnerable populations may have fewer resources to develop, update, and enforce strong, hazard-resistant building codes. Local governments with smaller budgets may not be able to maintain sufficient staff with applicable expertise to enforce building codes. The ICC and partner organizations have recognized the burdens that certain communities face in developing, administering, and enforcing codes so as to ensure safe and hazard-resistant buildings.
Older buildings oftentimes do not meet current building codes. Many building codes primarily regulate new construction or existing buildings under repair, reconstruction, new ownership, or those subject to certain permitting requirements (for example, "property maintenance" permits).In other circumstances, the code requirements for existing buildings are those which were in effect when the structure was designed and constructed. The ICC notes that existing buildings must generally meet the International Fire Code and International Property Maintenance Code even when otherwise subjected to the code existing at the time of original construction./170
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169 See, for example, Jay, A.,
170
171 Some industry advocates raised concern that
172 Email from FEMA Congressional Affairs Staff,
173 See, for example, Assistance for Latest and Zero
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Alternatively,
Streamlining and Standardizing Post-Disaster Federal
Under current statute, regulations, and policy, different Stafford Act programs require compliance with different building codes and standards, as summarized above. Such inconsistency creates confusion or haphazard standards within the same community. Recently,
Should
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174
175 Executive Order 13690, "Establishing a Federal Flood Risk Management Standard and a Process for Further Soliciting and Considering Stakeholder Input," 80
176 For example, S. 1688, Federal Flood Risk Management Act of 2021, in the 117th
177 In
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FEMA Assistance in Hazard Zones
Some scholars and oversight entities, including the
However, such proposals are not without risk. Restricting assistance could significantly burden communities that are predominantly or entirely located in hazard-prone areas, or could potentially exacerbate affordable housing shortages by discouraging development./183 Some entire counties, for example, are in SFHAs, so reducing assistance in these areas could impede community recovery following an incident, or prove infeasible. Additionally,
Historically,
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178 See, for example,
179
180 See
181 Stafford Act, Sec. 406(c)(1)(C), 42 U.S.C. Sec.5172(c)(1)(C). See proposal in
182 Stafford Act Sec. 406(b)(2)(B), 42 U.S.C. Sec.5172(b)(2)(B).
183
184 For example, GAO reported that in
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P.L. 117-169, often referred to as the Inflation Reduction Act of 2022, enhanced
This broadly written authority affords significant discretion to the FEMA Administrator. While it does not require
Separately, some of
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185 Section 70006 of P.L. 117-130.
186 Assistant Administrator of Recovery
187 See CRS Report R46719, Green
188 For further background, see
189
190
191 SEIA, "Compromise Code Proposal Prevails in Victory for Clean Energy,"
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As described earlier in this report, building codes often utilize historical data to determine what forces or hazards a building should withstand (e.g., building to withstand a flood with a 1% or greater risk of occurring in any given year). Yet the utility of such historical data for understanding future risks may be diminishing. Climate change and changing development patterns may significantly change the risk of certain hazards, rendering codes insufficient or obsolete more quickly than in earlier decades. For this reason,
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192 See, for example,
193 See the reference to "future events" (defined as conditions in 2045) in National Advisory Council Report to the FEMA Administrator,
194 See for example, Section 20606 of the Bipartisan Budget Act of 2018 (P.L. 115-123) as it amends Stafford Act Section 406(b) to authorize an increased federal share for PA to provide incentives to governments to "invest in measures that increase readiness for, and resilience from, a major disaster," which may include "encouraging the adoption and enforcement of the latest published editions of relevant consensus-based codes, specifications, and standards."
195
196 Ibid., p. 38.
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Concluding Comments
Currently,
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The report is posted at: https://crsreports.congress.gov/product/pdf/R/R47612
Lisa Davis: If it quacks like a duck …
Congressional Research Service: 'Building Resilience – FEMA's Building Codes Policies & Considerations for Congress' (Part 1 of 2)
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