Opportunity to Shape New DRRA Policy on FEMA Building Codes Enforcement
The Federal Emergency Management Agency (FEMA) has released the draft Recovery Policy on Building Code and Floodplain Management Administration and Enforcement, a document that, according to FEMA, “defines the framework and requirements for consistent and appropriate implementation [of Section 1206 of the Disaster Recovery Reform Act (DRRA)] through the PA Program.” This new policy may offer significant opportunities for state and local governments to improve resilience by providing federal funding for post-disaster code enforcement and code administration activities. FEMA has released the draft document for a 45-day public comment period, accepting comments until Friday, March 6, 2020.
For background, Congress passed the DRRA of 2018 on October 5, 2018 to change how the federal government supports disaster preparedness, response, and recovery and to work towards a more resilient future. The DRRA focuses on how to better incentivize and fund disaster resilience. This particular component of the DRRA, Section 1206, specifically amends sections 402 and 406 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) to authorize FEMA to provide assistance to state, local, tribal, and territorial (SLTT) governments for building code and floodplain management ordinance administration and enforcement activities.
Overall, the draft policy is rather straightforward: FEMA can now pay for certain post-disaster code enforcement and administration activities within 180 days of the disaster declaration date. Unfortunately, 180 days is typically not long enough for most communities to adopt new and/or enforce codes in recovery projects. However, this timebound requirement comes from the DRRA, so FEMA cannot extend it. Eligible activities include but are not limited to: substantial damage inspections, permitting, and hiring new staff to implement adopted codes. Eligible costs will generally be obligated via a Category G permanent work project worksheet (PW) and will be funded at the permanent work cost-share applicable to the disaster. This opt-in policy will be retroactive to disasters declared on or after August 1, 2017.
The Hagerty Consulting, Inc. (Hagerty) Team is taking this opportunity to provide our feedback to FEMA to help shape the final policy. After review of the draft policy, our Team’s key takeaways include:
What We Like About the Draft Policy
- Even if communities adopt updated codes after a disaster, FEMA can fund enforcement and administrative activities. Still, it is unlikely that communities will be able to develop and adopt code updates within 180 days of a disaster.
- Eligible activities extend beyond public facilities to include private and residential structures. This broad scope allows FEMA to support local building departments across the spectrum of post-disaster code enforcement and administration.
What We Think FEMA Should Revise in the New Policy
- While the draft policy outlines dozens of eligible activities, it restricts FEMA funding to only overtime costs for existing, budgeted employees – the same restriction as Emergency Work under Public Assistance (PA). This part significantly undermines the benefit of the new draft policy. Further, it is inconsistent with FEMA’s position that eligible enforcement and administration activities under this policy are considered permanent work, to be captured on Category G PWs. DRRA Section 1206 does not appear to strictly limit eligibility of budgeted employees. As such, FEMA should expand eligibility for straight and overtime regardless of local employee status.
- Note: if communities hire new employees and/or contract out, all costs are eligible. This is in contrast to the limits for budgeted employees described above.
- The draft policy is retroactive to disasters declared on or after August 1, 2017; however, the mechanism by which communities must opt in is needlessly time limited. FEMA should revise the opt-in requirements and proactively socialize this expanded assistance to ensure that all interested communities are aware of and can opt in if desired.
The Hagerty Team strongly encourages all past, current, and future FEMA PA recipients and sub-recipients to consider reviewing the draft of the Section 1206 policy and submitting comments to FEMA. Let your voices or concerns be heard before this new policy document is finalized and published! If you would like to submit comments to FEMA, you must do so by March 6, 2020 using this comment matrix and submitting to FEMA-Recovery-PA-Policy@fema.dhs.gov.
 This does not change the criteria for funding permanent work upgrades only for codes in effect at the time of the disaster pursuant to 44 CFR §206.226(d), or the recently published interim policy on Section 1235(b) on the DRRA. Check back with Disaster Discourse for a future post discussing Section 1235(b) Consensus-Based Codes, Specifications, and Standards.
Ari Renoni is a Deputy Director of Recovery Programs with Hagerty. He supports clients in New York, California, Puerto Rico, Florida, and elsewhere. Prior to Hagerty, Ari worked for the United Nations (UN) World Food Programme (WFP), the UN Children’s Fund (UNICEF), the Ministry of Education in Namibia, and for the Center for Policy Research at the Maxwell School of Citizenship and Public Affairs, Syracuse University. He lives in upstate NY with his wife and two children.