The Federal Emergency Management Agency has stopped enforcing a Biden administration-era rule that was aimed at preventing flood damage to public buildings, a move that some said could threaten public safety and violate federal law.
According to The New York Times, the policy change at the agency was detailed in a Feb. 4 memo by FEMA's chief counsel, Adrian Sevier.
The rule, known as the Federal Flood Risk Management Standard, was reportedly a Biden administration effort to limit the rising costs of natural disasters and said that public buildings destroyed or damaged in a flood zone must be rebuilt in a manner that prevents future flood damage in order to qualify for FEMA funds.
The standard could also reportedly apply to private homes that are repaired or rebuilt in a flood plain in certain cases.
Former President Joe Biden signed an executive order shortly after taking office, calling for a new federal flood standard, which resulted in the final rule that FEMA issued last July.
But the rule's history stretches back to 2016, when FEMA first proposed it in response to an executive order from Barack Obama. After Donald Trump took office in 2017, he rescinded Obama's order, bringing FEMA's effort to a halt, until Biden entered the White House in 2021.
According to Deanne Criswell, the head of FEMA at the time, the rule was put in place not just to protect people and property, but also to save taxpayers money, as increased flooding in recent years has created a need for repeatedly rebuilding with government assistance.
"We are going to be able to put a stop to the cycle of response and recovery, and rinse and repeat," Criswell said at the time.
Trump revoked the executive order establishing a federal flood standard on the first day of his second administration, the Times reported.
In his memo, Sevier said that FEMA will not enforce the rule as it considers making potential changes.
"This pause must be implemented immediately while FEMA takes action to rescind or amend the policies," Sevier wrote.
Citing Trump's executive order, FEMA said in a statement to the Times that the flood rule "is under review."
David A. Super, a Yale law professor who specializes in administrative law, contended that FEMA cannot just stop enforcing a rule. He pointed to a process specified by federal law that the agency must follow if it wants to repeal a regulation, which includes issuing a public notice, seeking and reviewing public comments and publishing a new, final rule.
Until a rule is repealed, the law states that it must remain in effect, Super said.
The legality of FEMA's decision depends on how long it pauses the rule's enforcement, Jennifer Nou, a professor at the University of Chicago Law School, told the Times. An extended pause would put the agency on shakier legal ground, she said.
According to Association of State Floodplain Managers Executive Director Chad Berginnis, FEMA's failure to enforce the rule would risk people's safety and contradict Trump's stated goal of eliminating government waste.
Under the flood rule, if a damaged or destroyed water treatment plant needs to be rebuilt, it must be done in a way that would make it unlikely to be damaged again.
"We are jeopardizing the safety of the people in that community" if the rule is paused, Berginnis said, adding that without reasonable flood standards, "we literally are wasting taxpayer money."