With the passage of the 2018 Disaster Recovery Reform Act (DRRA), FEMA will now pay to restore damaged facilities and make them more resilient beyond locally adopted codes and standards. While this new opportunity allows communities to build back better and protect themselves against future hazards, it also poses risks. State, local, tribal, and territorial (SLTT) governments and private nonprofits (PNPs) can access new funding, but to do so is a complex process, and proper compliance is required. During this hurricane and wildfire season, SLTTs and PNPs should familiarize themselves with these new requirements to take full advantage of this federal funding.
What Changed?
On November 6, 2019, FEMA issued an interim policy titled Consensus-Based Codes, Specifications and Standards for Public Assistance (Policy). This Policy requires FEMA to fund PA projects in conformity with the latest published editions of relevant consensus-based codes, specifications, and standards, incorporating the latest hazard-resistant design and establishing minimum acceptable criteria for the design, construction, and maintenance of residential structures and facilities that may be eligible for this assistance.
Additionally, the project must be designed for the purposes of protecting the health, safety, and general welfare of a facility’s users against disasters. FEMA amended their previous codes and standards criteria and is now requiring applicants to adhere to numerous published codes, specifications, and standards which are listed within the policy document as Appendix A. FEMA’s previous codes and standards policy limited funding to only cover codes, specifications, and standards that were locally adopted and consistently implemented; however, now, FEMA will fund upgrades beyond what is locally adopted, provided they restore damaged facilities to be more resilient to future hazards.
On March 29, 2021, to support its new 2019 policy, FEMA released the new FEMA Policy and Building Code Decision Tree: Navigating Building Damage within the Public Assistance Grant Program to guide FEMA staff, FEMA PA grant applicants or their representatives, hazard mitigation officers, and others through the process of making determinations and decisions related to substantial structural damage and substantial damage.
FEMA Policy and Building Code Decision Tree: Source
This new Policy is applicable to applicants for disasters that occurred after November 6, 2019, or applicants who “opt-in” for disasters that occurred prior to that date. The key aspects of the new FEMA Policy relevant to an applicant are:
- Not Optional – Compliance with the new codes, specifications, and standards will not be optional for an applicant for future disaster permanent work projects funded by FEMA Public Assistance. Non-compliance with the applicable code, specifications, and standards will result in denial of project eligibility or funding deobligation by FEMA unless the applicant is able to successfully argue to FEMA that the code, specification, or standard is “technically infeasible,” creates an “extraordinary burden” on the City, or is “inappropriate” to the facility “such as adversely affecting a facility that has been listed on the National Register of Historic Places.”
- Specific to Certain Types of Facilities – The Policy is specific only to buildings, electric power, roads, bridges, potable water, and wastewater facilities. Therefore, shoreline protection, parks, hardscapes, etc., will not be affected by this policy and will be subject to the previous FEMA policy in which codes and standards are eligible to be funded by FEMA, i.e., codes and standards formally adopted prior to the disaster by the applicant and practiced without exception.
- Proof of Compliance – Upon completion of all projects, proof of compliance with all applicable codes, specifications, and standards must be provided by the applicant to FEMA. FEMA will accept written certifications by registered engineers, design professionals or other qualified individuals as proof of compliance. A likely standard practice would be for the designer of record (engineer or architect) or the Department of Buildings (DOB) plan examiner to create these certifications. The designers of record are already responsible for normal applicable code compliances, so the certification would be consistent with their normal duties, although this creates abnormal additional requirements for the designers of record, and additional fees might be required.
- Direct Relationship to Disaster Damages – The Policy limits which codes, specifications, and standards requirements are eligible for FEMA reimbursement. The Policy language describes that there must be a “direct relationship between the upgrade work and eligible damage.” This language is vague but can be interpreted as only codes, specifications, and standards of a disaster-damaged building system will be reimbursed by FEMA. It should also be noted that this limitation in funding could create an unfunded mandate scenario for FEMA PA applicants. Since the Policy’s proof of compliance requirement does not distinguish between those codes, specifications, and standards related to disaster damages (funded) and those that are not related to disaster damages (not funded), it can be assumed that the proof of compliance could still be required, thereby requiring that certain non-FEMA funded codes, standards and specifications are being met at the SLTT level.
Way Forward
With hurricane season upon us, SLTTs and PNPs will benefit from preparing for the additional complexity this new FEMA Policy creates. Hagerty recommends taking the following steps before disaster strikes:
- Code Comparison – Perform a comparative analysis of the FEMA required codes, specifications, and standards to the current, locally adopted applicable building code and create a document that details significant, new requirements. Since the consensus-based codes as well as adopted codes by SLTTs are regularly updated, this code comparison review will also need to be revisited regularly.
- Code Compliance Certification Process – Develop a code, specification, and standard certification process to follow for all future PA-funded disaster recovery projects that identifies applicable consensus-based codes, specifications, and standards. This process should detail which party creates the certification, how and in which phase of the project it is created. Additionally, this process can also include standard forms, design contract language to include the additional certification scope of work, procurement instructions, etc.
Hagerty Can Help
The disaster recovery process can be complicated but it is eased with excellent advice and assistance. Hagerty professionals understand and know the rules, and we have years of experience advocating for and negotiating on behalf of our clients. The results of our work — the billions of dollars we have helped secure for our clients — are proof of our success and expertise in working with government programs. Contact us to discuss how we can help you meet your preparedness, response, and recovery needs.
Savita Goel is an experienced engineer with more than two decades of experience in management, business administration, and recovery-related projects. She is also adept at assisting firms to assess risk. Savita’s storied engineering background gives her the ability to head teams including management and hands-on engineers, often with projects that deal in millions of dollars of federal grant management and budgeting. Savita is also experienced in assessing risks posed to large urban areas from terrorist threats.
Ari Renoni is Hagerty’s Deputy Director of Recovery and has 12 years of experience working with government and international public organizations. He has a deep familiarity with federal policy, given his experience supporting FEMA projects for clients in New York, California, Puerto Rico, Texas, and Florida.