§9.5. Scope.
44 C.F.R. § 9.5
Applicability.
These regulations apply to all Agency actions which have the potential to affect floodplains or wetlands or their occupants, or which are subject to potential harm by location in floodplains or wetlands.
The basic test of the potential of an action to affect floodplains or wetlands is the action's potential (both by itself and when viewed cumulatively with other proposed actions) to result in the long- or short-term adverse impacts associated with:
The occupancy or modification of floodplains, and the direct and indirect support of floodplain development; or
The destruction or modification of wetlands and the direct or indirect support of new construction in wetlands.
The amendments to this part made on September 9, 2024 apply to new actions for which assistance is made available pursuant to declarations under the Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988 on or after September 9, 2024 and new actions for which assistance is made available pursuant to notices of funding opportunities published on or after September 9, 2024. For ongoing actions for which assistance was made available prior to that date, legacy program regulations (available at http://www.fema.gov) shall apply.
Limited exemption of ongoing actions involving wetlands located outside the floodplains.
Executive Order 11990, Protection of Wetlands, contains a limited exemption not found in Executive Order 11988, Floodplain Management, as amended. Therefore, this exemption applies only to actions affecting wetlands which are located outside the floodplains, and which have no potential to result in harm to or within floodplains or to support floodplain development.
The following proposed actions that impact wetlands located outside of floodplains are exempt from this regulation:
Agency-assisted or permitted projects which were under construction before May 24, 1977; and
Projects for which the Agency has proposed a draft of a final environmental impact statement (EIS) which adequately analyzes the action and which was filed before October 1, 1977. Proposed actions that impact wetlands outside of floodplains are not exempt if the EIS:
Only generally covers the proposed action;
Is devoted largely to related activities; or
Treats the project area or program without an adequate and specific analysis of the floodplain and wetland implications of the proposed action.
Decision-making involving certain categories of actions. The provisions set forth in this part are not applicable to the actions enumerated in paragraphs (c)(1) through (10) of this section except that the Regional Administrators shall comply with the spirit of Executive Order 11988, as amended, and Executive Order 11990 to the extent practicable. For any action which is excluded from the actions enumerated below, the full 8-step process applies (see § 9.6) (except as indicated at paragraphs (d), (e), and (g) of this section regarding other categories of partial or total exclusion). The provisions of this part do not apply to the following (all references are to the Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988, Public Law 93-288, as amended, except as noted):
Assistance provided for emergency work essential to save lives and protect property and public health and safety performed pursuant to sections 403 and 502;
Emergency Support Teams (section 303);
Emergency Communications (section 418);
Emergency Public Transportation (section 419);
Fire Management Assistance (section 420), except for hazard mitigation assistance under sections 404 and 420(d);
Community Disaster Loans (section 417), except to the extent that the proceeds of the loan will be used for repair of facilities or structures or for construction of additional facilities or structures;
The following Federal Assistance to Individuals and Households Program (section 408) categories of assistance:
Financial assistance for temporary housing (section 408(c)(1)(A));
Lease and repair of rental units for temporary housing (section 408(c)(1)(B)(ii)), except that Step 1 (§ 9.7) shall be carried out;
Repairs (section 408(c)(2));
Replacement (section 408(c)(3)); and
Financial assistance to address other needs (section 408(e)).
Debris clearance and removal (sections 403 and 502), except those grants involving non-emergency disposal of debris within a floodplain or wetland (section 407);
Actions under sections 406 and 407 of less than $18,000. Such $18,000 amount will be adjusted annually to reflect changes in the Consumer Price Index for All Urban Consumers published by the Department of Labor;
Placement of families in existing resources and Temporary Relocation Assistance provided to those families so placed under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, Public Law 96-510.
Abbreviated decision-making process applying steps 1, 4, 5, and 8. The Regional Administrator shall apply steps 1, 4, 5, and 8 of the decision-making process (§§ 9.7, 9.10, and 9.11) to repairs under section 406 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988, Public Law 93-288, as amended, between $18,000 and $91,000. Such $18,000 and $91,000 amounts will be adjusted annually to reflect changes in the Consumer Price Index for All Urban Consumers published by the Department of Labor. For any action which is excepted from the actions listed below (except as otherwise provided in this section regarding other categories of partial or total exclusion), the full 8-step process applies (See § 9.6). The Regional Administrator may also require certain other portions of the decision-making process to be carried out for individual actions as is deemed necessary. Steps 1, 4, 5, and 8 of the decision-making process apply to actions under section 406 of the Stafford Act referenced above except for:
Actions in a floodway or coastal high hazard area; or
New construction, substantial improvement, or repairs to address substantial damage of structures or facilities; or
Facilities or structures which have previously sustained damage from flooding due to a major disaster or emergency or on which a flood insurance claim has been paid; or
Critical actions.
Abbreviated decision-making process applying steps 1, 2, 4, 5, and 8. The Regional Administrator shall apply steps 1, 2, 4, 5, and 8 of the decision-making process (§§ 9.7, 9.8, 9.10, and 9.11, see § 9.6) to certain actions under Section 406 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988, Public Law 93-288, as amended, provided in paragraphs (e)(1) and (2) of this section. Steps 3 and 6 (§ 9.9) shall be carried out except that alternative sites outside the floodplain or wetland need not be considered. After assessing impacts of the proposed action on the floodplain or wetlands and of the site on the proposed action, alternative actions to the proposed action, if any, and the “no action” alternative shall be considered. The Regional Administrator may also require certain other portions of the decision-making process to be carried out for individual actions as is deemed necessary. For any action which is excluded from the actions listed below (except as otherwise provided in this section regarding other categories of partial or total exclusion), the full 8-step process applies (see § 9.6). The Regional Administrator shall apply steps 1, 2, 4, 5, and 8 of the decision-making process (§§ 9.7, 9.8, 9.10, and 9.11, see § 9.6) to:
Replacement of building contents, materials, and equipment (section 406).
Repairs under section 406 to damaged facilities or structures, except any such action for which one or more of the following is applicable:
FEMA estimated cost of repairs is more than 50 percent of the estimated reconstruction cost of the entire facility or structure or is more than $364,000. Such $364,000 amount will be adjusted annually to reflect changes in the Consumer Price Index for All Urban Consumers published by the Department of Labor; or
The action is located in a floodway or coastal high hazard area; or
Facilities or structures which have previously sustained structural damage from flooding due to a major disaster or emergency or on which a flood insurance claim has been paid; or
The action is a critical action.
Other categories of actions. Based upon the completion of the 8-step decision-making process (§ 9.6), the Regional Administrator may find that a specific category of actions either offers no potential for carrying out the purposes of the Orders and shall be treated as those actions listed in paragraph (c) of this section, or has no practicable alternative sites and shall be treated as those actions listed in paragraph (e) of this section, or has no practicable alternative actions or sites and shall be treated as those actions listed in paragraph (d) of this section. This finding will be made in consultation with FEMA Resilience and the Council on Environmental Quality as provided in section 2(d) of Executive Order 11988, as amended. Public notice of each of these determinations shall include publication in the Federal Register and a 30-day comment period.
The National Flood Insurance Program (NFIP).
FEMA Resilience shall apply the 8-step decision-making process to program-wide actions under the NFIP, including all regulations, procedures, and other issuances making or amending program policy, and the establishment of programmatic standards or criteria. FEMA Resilience shall not apply the 8-step decision-making process to the application of programmatic standards or criteria to specific situations. Thus, for example, FEMA Resilience would apply the 8-step process to a programmatic determination of categories of structures to be insured, but not to whether to insure each individual structure.
The provisions set forth in this part are not applicable to the actions enumerated below except that FEMA Resilience shall comply with the spirit of the Orders to the extent practicable:
The issuance of individual flood insurance policies and policy interpretations;
The adjustment of claims made under the Standard Flood Insurance Policy;
The hiring of independent contractors to assist in the implementation of the NFIP;
The issuance of individual flood insurance maps, Map Information Facility map determinations, and map amendments; and
The conferring of eligibility for emergency or regular program (NFIP) benefits upon communities.
Notes, amendments, and revision history
Amendments
[45 FR 59526, Sept. 9, 1980, as amended at 47 FR 13149, Mar. 29, 1982; 49 FR 35583, Sept. 10, 1984; 50 FR 40006, Oct. 1, 1985; 51 FR 39531, Oct. 29, 1986; 66 FR 57347, Nov. 14, 2001; 89 FR 57040, July 11, 2024]
Authority
Authority: 6 U.S.C. 101 et seq.; 42 U.S.C. 4001 et seq.; 42 U.S.C. 4321 et seq.; E.O. 11988 of May 24, 1977, 42 FR 26951, 3 CFR, 1977 Comp., p. 117; E.O. 11990 of May 24, 1977, 42 FR 26961, 3 CFR, 1977 Comp. p. 121; E.O. 13690, 80 FR 6425; E.O. 14030, 86 FR 27967.
Source
Source: 45 FR 59526, Sept. 9, 1980, unless otherwise noted.
Amendments
[45 FR 59526, Sept. 9, 1980, as amended at 47 FR 13149, Mar. 29, 1982; 49 FR 35583, Sept. 10, 1984; 50 FR 40006, Oct. 1, 1985; 51 FR 39531, Oct. 29, 1986; 66 FR 57347, Nov. 14, 2001; 89 FR 57040, July 11, 2024]