44 C.F.R. §§ 9.6–9.13

8 sections in range

§9.6. Decision-making process.

44 C.F.R. § 9.6

(a)

Purpose. This section sets out the floodplain management and wetlands protection decision-making process to be followed by the Agency in applying the Orders to its actions. The numbering of Steps 1 through 8 does not require that the steps be followed sequentially. As information is gathered through the decision-making process, and as additional information is needed, reevaluation of lower numbered steps may be necessary.

(b)

Decision-making process. Except as otherwise provided in § 9.5 regarding categories of partial or total exclusion when proposing an action, the Agency shall apply the 8-step decision-making process. FEMA shall:

(1)

Step 1. Determine whether the proposed action is located in a floodplain and/or a wetland as established by § 9.7; and whether it has the potential to affect or be affected by a floodplain or wetland (see § 9.7);

(2)

Step 2. Notify the public at the earliest possible time of the intent to carry out an action in a floodplain or wetland, and involve the affected and interested public in the decision-making process (see § 9.8);

(3)

Step 3. Identify and evaluate practicable alternatives to locating the proposed action in a floodplain or wetland (including alternative sites, actions, natural features, nature-based approaches, and the “no action” option) (see § 9.9). If a practicable alternative exists outside the floodplain or wetland FEMA must locate the action at the alternative site.

(4)

Step 4. Identify the potential direct and indirect impacts associated with the occupancy or modification of floodplains and wetlands and the potential direct and indirect support of floodplain and wetland development that could result from the proposed action (see § 9.10);

(5)

Step 5. Minimize the potential adverse impacts to or within floodplains and wetlands and minimize support of floodplain and wetland development identified under Step 4. Restore and preserve the natural and beneficial values served by floodplains, and preserve and enhance the natural and beneficial values served by wetlands. Integrate nature-based approaches where appropriate (see § 9.11);

(6)

Step 6. Reevaluate the proposed action to determine first, if it is still practicable in light of its exposure to flood hazards, the extent to which it will aggravate hazards to others, and its potential to disrupt floodplain and wetland values; and second, if alternatives preliminarily rejected at Step 3 are practicable in light of the information gained in Steps 4 and 5. FEMA shall not act in a floodplain or wetland unless it is the only practicable location (see § 9.9);

(7)

Step 7. Prepare and provide the public with a finding and public explanation of any final decision that the floodplain or wetland is the only practicable alternative (see § 9.12); and

(8)

Step 8. Review the implementation and post-implementation phases of the proposed action to ensure that the requirements stated in § 9.11 are fully implemented. Oversight responsibility shall be integrated into existing processes.

Notes, amendments, and revision history

Amendments

[89 FR 57041, 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

[89 FR 57041, July 11, 2024]

§9.7. Determination of proposed action's location.

44 C.F.R. § 9.7

(a)

Purpose. This section establishes Agency procedures for determining whether any action as proposed is located in or affects a floodplain established in paragraph (c) of this section or a wetland.

(b)

Information needed.

(1)

The Agency shall obtain enough information so that it can fulfill the requirements in this part to:

(i)

Avoid Federal action in floodplain and wetland locations unless they are the only practicable alternatives; and

(ii)

Minimize harm to and within floodplains and wetlands.

(2)

In all cases, FEMA shall determine whether the proposed action is located in a floodplain or wetland. Information about the floodplain as established by paragraph (c) of this section and the location of floodways and coastal high hazard areas may also be needed to comply with this part, especially § 9.11.

(3)

The following additional current and future flooding characteristics may be identified by the Regional Administrator as applicable:

(i)

Velocity of floodwater;

(ii)

Rate of rise of floodwater;

(iii)

Duration of flooding;

(iv)

Available warning and evacuation time and routes;

(v)

Special problems—

(A)

Levees;

(B)

Erosion;

(C)

Subsidence;

(D)

Sink holes;

(E)

Ice jams;

(F)

Debris load;

(G)

Pollutants;

(H)

Wave heights;

(I)

Groundwater flooding;

(J)

Mudflow.

(vi)

Any other applicable flooding characteristics.

(c)

Floodplain determination. In the absence of a finding to the contrary, FEMA will determine that a proposed action involving a facility or structure that has been flooded previously is in the floodplain. In determining if a proposed action is in the floodplain:

(1)

FEMA shall determine whether the action is an action subject to the FFRMS as defined in § 9.4.

(i)

If the action is an action subject to the FFRMS, FEMA shall establish the FFRMS floodplain area and associated flood elevation by using the process specified in (c)(3) of this section and one of the following approaches:

(A)

Climate-Informed Science Approach (CISA)— Using a climate-informed science approach that uses the best-available, actionable hydrologic and hydraulic data and methods that integrate current and future changes in flooding based on climate science. This approach will also include an emphasis on whether the action is a critical action as one of the factors to be considered when conducting the analysis;

(B)

Freeboard Value Approach (FVA)— Using the freeboard value, reached by adding an additional 2 feet to the base flood elevation for non-critical actions and by adding an additional 3 feet to the base flood elevation for critical actions;

(C)

0.2-Percent-Annual-Chance Flood Approach (0.2PFA): The 0.2 percent annual chance flood; or

(D)

Any other method identified in an update to the FFRMS.

(ii)

FEMA may select among and prioritize the approaches in this paragraph (c)(1) by policy.

(iii)

FEMA may provide an exception to using the FFRMS floodplain and corresponding flood elevation for an action subject to the FFRMS and instead use the 1 percent annual chance (base) floodplain for non-critical actions or the 0.2 percent annual chance floodplain for critical actions where the action is in the interest of national security, where the action is an emergency action, or where the action is a mission-critical requirement related to a national security interest or an emergency action.

(2)

If the action is not an action subject to the FFRMS as defined in § 9.4, FEMA shall use, at a minimum:

(i)

The 1 percent annual chance (base) floodplain and flood elevation for non-critical actions; and

(ii)

The 0.2 percent annual chance floodplain and flood elevation for critical actions.

(3)

FEMA shall establish the floodplain and corresponding elevation using the best available information. The floodplain and corresponding elevation determined using the best available information must be at least as restrictive as FEMA's regulatory determinations under the NFIP where such determinations are available. In obtaining the best available information, FEMA may consider other FEMA information as well as other available information, such as information from:

(i)

Department of Agriculture— Natural Resources Conservation Service, U.S. Forest Service;

(ii)

Department of Defense— U.S. Army Corps of Engineers;

(iii)

Department of Commerce— National Oceanic and Atmospheric Administration;

(iv)

Department of the Interior— Bureau of Land Management, Bureau of Reclamation, National Park Service, U.S. Fish and Wildlife Service, United States Geological Survey;

(v)

Tennessee Valley Authority;

(vi)

Department of Transportation;

(vii)

Environmental Protection Agency;

(viii)

General Services Administration;

(ix)

Agencies of State, Regional, and Indian Tribal governments; or

(x)

Local sources such as Floodplain Administrators, Regional Flood Control Districts, or Transportation Departments.

(4)

If the sources listed in paragraph (c)(3) of this section do not have or know of the information necessary to comply with the requirements in this part, the Regional Administrator may seek the services of a professional registered engineer.

(5)

If a decision involves an area or location within extensive Federal or state holdings or a headwater area and FEMA's regulatory determinations under the National Flood Insurance Program are not available, the Regional Administrator shall seek information from the land administering agency before information and/or assistance is sought from the sources listed in paragraph (c)(3) of this section.

(d)

Wetland determination. The following sequence shall be followed by the Agency in making the wetland determination.

(1)

The Agency shall consult with the U.S. Fish and Wildlife Service (FWS) for information concerning the location, scale and type of wetlands within the area which could be affected by the proposed action.

(2)

If the FWS does not have adequate information upon which to base the determination, the Agency shall consult wetland inventories maintained by the Army Corps of Engineers, the Environmental Protection Agency, various states, communities and others.

(3)

If the identified sources do not have adequate information upon which to base the determination, the Agency shall carry out an on-site analysis performed by a representative of the FWS or other qualified individual for wetlands characteristics based on the definition of a wetland in § 9.4.

(4)

If an action constitutes new construction and is in a wetland but not in a floodplain, the provisions of this part shall apply. If the action is not in a wetland, the Regional Administrator shall determine if the action has the potential to result in indirect impacts on wetlands. If so, all potential adverse impacts shall be minimized. For actions which are in a wetland and the floodplain, completion of the decision-making process is required. (See § 9.6). In such a case, the wetland will be considered as one of the natural and beneficial values of the floodplain.

Notes, amendments, and revision history

Amendments

[45 FR 59526, Sept. 9, 1980, as amended at 47 FR 13149, Mar. 29, 1982; 49 FR 33879, Aug. 27, 1984; 50 FR 40006, Oct. 1, 1985; 51 FR 34605, Sept. 30, 1986; 89 FR 57042, July 11, 2024]

Authority

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 33879, Aug. 27, 1984; 50 FR 40006, Oct. 1, 1985; 51 FR 34605, Sept. 30, 1986; 89 FR 57042, July 11, 2024]

§9.8. Public notice requirements.

44 C.F.R. § 9.8

(a)

Purpose. This section establishes the initial notice procedures to be followed when the Agency proposes any action in or affecting floodplains or wetlands.

(b)

General. The Agency shall provide adequate information to enable the public to have impact on the decision outcome for all actions having potential to affect, adversely, or be affected by floodplains or wetlands that it proposes. To achieve this objective, the Agency shall:

(1)

Provide the public with adequate information and opportunity for review and comment at the earliest possible time and throughout the decision-making process; and upon completion of this process, provide the public with an accounting of its final decisions (see § 9.12); and

(2)

Rely on its environmental assessment processes, to the extent possible, as vehicles for public notice, involvement and explanation.

(c)

Early public notice. The Agency shall provide opportunity for public involvement in the decision-making process through the provision of public notice upon determining that the proposed action can be expected to affect or be affected by floodplains or wetlands. Whenever possible, notice shall precede major project site identification and analysis in order to preclude the foreclosure of options consistent with the Orders.

(1)

For an action for which an environmental impact statement is being prepared, the Notice of Intent to File an EIS constitutes the early public notice if it includes the information required under paragraph (c)(5) of this section.

(2)

For each action having national significance for which notice is being provided, the Agency at a minimum shall provide notice by publication in the Federal Register and shall provide notice by mail to national organizations reasonably expected to be interested in the action. The additional notices listed in paragraph (c)(4) of this section shall be used in accordance with the determination made under paragraph (c)(3) of this section.

(3)

The Agency shall determine whether it has provided appropriate notices, adequate comment periods, and whether to issue cumulative notices (paragraphs (c)(4), (6), and (7) of this section) based on factors which include, but are not limited to:

(i)

Scale of the action;

(ii)

Potential for controversy;

(iii)

Degree of public need;

(iv)

Number of affected agencies and individuals; and

(v)

Anticipated potential impact of the action.

(4)

For each action having primarily local importance for which notice is being provided, notice shall be made in accordance with the criteria under paragraph (c)(3) of this section, and shall include, as appropriate:

(i)

Notice through the internet or another comparable method.

(ii)

Notice to Indian tribes when effects may occur on reservations.

(iii)

Information required in the affected State's public notice procedures for comparable actions.

(iv)

Publication in local newspapers.

(v)

Notice through other local media including newsletters.

(vi)

Notice to potential interested community organizations.

(vii)

Direct mailing to owners and occupants of nearby or affected property.

(viii)

Posting of notice on and off site in the area where the action is to be located.

(ix)

Public hearing.

(5)

The notice shall—

(i)

Describe the action, its purposes, and a statement of the intent to carry out an action affecting or affected by a floodplain or wetland;

(ii)

Based on the factors in paragraph (c)(3) of this section, include a map of the area and other identification of the floodplain and/or wetland areas which is of adequate scale and detail; alternatively, FEMA may state that such map is available for public inspection, including the location at which such map may be inspected and a telephone number to call for information or may provide a link to access the map online;

(iii)

Based on the factors in paragraph (c)(3) of this section, describe the type, extent, and degree of hazard involved and the floodplain or wetland values present; and

(iv)

Identify the responsible official or organization for implementing the proposed action, and from whom further information can be obtained.

(6)

The Agency shall provide for an adequate comment period.

(7)

In a post-disaster situation in particular, the requirement for early public notice may be met in a cumulative manner based on the factors set out in paragraph (c)(3) of this section. Several actions may be addressed in one notice or series of notices. For some actions involving limited public interest a single notice in a local newspaper or letter to interested parties may suffice.

(d)

Continuing public notice. The Agency shall keep the public informed of the progress of the decision-making process through additional public notices at key points in the process. The preliminary information provided under paragraph (c)(5) of this section shall be augmented by the findings of the adverse effects of the proposed actions and steps necessary to mitigate them. This responsibility shall be performed for actions requiring the preparation of an EIS, and all other actions having the potential for major adverse impacts, or the potential for harm to the health and safety of the general public.

Notes, amendments, and revision history

Amendments

[45 FR 59526, Sept. 9, 1980, as amended at 48 FR 29318, June 24, 1983; 89 FR 57042, July 11, 2024]

Authority

Source

Source: 45 FR 59526, Sept. 9, 1980, unless otherwise noted.

Amendments

[45 FR 59526, Sept. 9, 1980, as amended at 48 FR 29318, June 24, 1983; 89 FR 57042, July 11, 2024]

§9.9. Analysis and reevaluation of practicable alternatives.

44 C.F.R. § 9.9

(a)

Purpose.

(1)

This section expands upon the directives set out in § 9.6 of this part in order to clarify and emphasize the requirements to avoid floodplains and wetlands unless there is no practicable alternative.

(2)

Step 3 is a preliminary determination as to whether the floodplain is the only practicable location for the action. It is a preliminary determination because it comes early in the decision-making process when the Agency has a limited amount of information. If it is clear that there is a practicable alternative, or the floodplain or wetland is itself not a practicable location, FEMA shall then act on that basis. Provided that the location outside the floodplain or wetland does not indirectly impact floodplains or wetlands or support development therein (see § 9.10), the remaining analysis set out by this regulation is not required. If such location does indirectly impact floodplains or wetlands or support development therein, the remaining analysis set out by this regulation is required. If the preliminary determination is to act in the floodplain, FEMA shall gather the additional information required under Steps 4 and 5 and then reevaluate all the data to determine if the floodplain or wetland is the only practicable alternative.

(b)

Analysis of practicable alternatives. The Agency shall identify and evaluate practicable alternatives to carrying out a proposed action in floodplains or wetlands, including:

(1)

Alternative sites outside the floodplain or wetland;

(2)

Alternative actions which serve essentially the same purpose as the proposed action, but which have less potential to affect or be affected by the floodplain or wetlands. In developing the alternative actions, the Agency shall use, where possible, natural systems, ecosystem processes, and nature-based approaches; and

(3)

No action. The floodplain and wetland site itself must be a practicable location in light of the factors set out in this section.

(c)

The Agency shall analyze the following factors in determining the practicability of the alternatives set out in paragraph (b) of this section:

(1)

Natural environment (including, but not limited to topography, habitat, hazards, when applicable);

(2)

Social concerns (including, but not limited to aesthetics, historical and cultural values, land patterns, when applicable);

(3)

Economic aspects (including, but not limited to costs of space, technology, construction, services, relocation, when applicable);

(4)

Legal constraints (including, but not limited to deeds and leases, when applicable); and

(5)

Agency authorities.

(d)

Action following the analysis of practicable alternatives.

(1)

The Agency shall not locate the proposed action in the floodplain as established by § 9.7(c) or in a wetland if a practicable alternative exists outside the floodplain or wetland.

(2)

If no practicable alternative exists outside the floodplain or wetland, in order to carry out the action the floodplain or wetland must itself be a practicable location in light of the review required in this section.

(e)

Reevaluation of alternatives. Upon determination of the impact of the proposed action to or within the floodplain or wetland and of what measures are necessary to comply with the requirement to minimize harm to and within floodplains and wetlands (§ 9.11), FEMA shall:

(1)

Determine whether—

(i)

The action is still practicable at a floodplain or wetland site, considering the flood risk and the ensuing disruption of natural values;

(ii)

The floodplain or wetland site is the only practicable alternative;

(iii)

The scope of the action can be limited to increase the practicability of previously rejected non-floodplain or wetland sites and alternative actions; and

(iv)

Harm to or within the floodplain can be minimized using all practicable means.

(2)

Take no action in a floodplain unless the importance of the floodplain site clearly outweighs the requirements to:

(i)

Avoid direct or indirect support of floodplain development;

(ii)

Reduce the risk of flood loss;

(iii)

Minimize the impact of floods on human safety, health and welfare; and

(iv)

Restore and preserve floodplain values.

(3)

Take no action in a wetland unless the importance of the wetland site clearly outweighs the requirements to:

(i)

Avoid the destruction or modification of the wetlands;

(ii)

Avoid direct or indirect support of new construction in wetlands;

(iii)

Minimize the destruction, loss or degradation of wetlands; and

(iv)

Preserve and enhance the natural and beneficial values of wetlands.

(4)

In carrying out this balancing process, give the factors in paragraphs (e)(2) and (3) of this section great weight.

(5)

Choose the “no action” alternative where there are no practicable alternative actions or sites and where the floodplain or wetland is not itself a practicable alternative. In making the assessment of whether a floodplain or wetland location is itself a practicable alternative, the practicability of the floodplain or wetland location shall be balanced against the practicability of not carrying out the action at all. That is, even if there is no practicable alternative outside of the floodplain or wetland, the floodplain or wetland itself must be a practicable location in order for the action to be carried out there. To be a practicable location, the importance of carrying out the action must clearly outweigh the requirements of the Orders listed in paragraphs (e)(2) and (e)(3) of this section. Unless the importance of carrying out the action clearly outweighs those requirements, the “no action” alternative shall be selected.

Notes, amendments, and revision history

Amendments

[45 FR 59526, Sept. 9, 1980, as amended at 89 FR 57043, July 11, 2024; 89 FR 82182, Oct. 10, 2024]

Authority

Source

Source: 45 FR 59526, Sept. 9, 1980, unless otherwise noted.

Amendments

[45 FR 59526, Sept. 9, 1980, as amended at 89 FR 57043, July 11, 2024; 89 FR 82182, Oct. 10, 2024]

§9.10. Identify impacts of proposed actions.

44 C.F.R. § 9.10

(a)

This section ensures that the effects of proposed Agency actions are identified.

(b)

The Agency shall identify the potential direct and indirect adverse impacts associated with the occupancy and modification of floodplains and wetlands and the potential direct and indirect support of floodplain and wetland development that could result from the proposed action. Such identification of impacts shall be to the extent necessary to comply with the requirements of this part to avoid floodplain and wetland locations unless they are the only practicable alternatives to minimize harm to and within floodplains and wetlands.

(c)

This identification shall consider whether the proposed action will result in an increase in the useful life of any structure or facility in question, maintain the investment at risk and exposure of lives to the flood hazard or forego an opportunity to restore the natural and beneficial values served by floodplains or wetlands.

(d)

In the review of a proposed or alternative action, the Regional Administrator shall consider and evaluate: impacts associated with modification of wetlands and floodplains regardless of its location; additional impacts which may occur when certain types of actions may support subsequent action which have additional impacts of their own; adverse impacts of the proposed actions on lives and property and on natural and beneficial floodplain and wetland values; and the three categories of factors listed below:

(1)

Flood hazard-related factors. These include, but are not limited to, the factors listed in § 9.7(b)(3);

(2)

Natural values-related factors. These include, but are not limited to: water resource values, as in storing and conveying floodwaters, maintaining water quality, and groundwater recharge; living resource values, as in providing habitats and enhancing biodiversity for fish and wildlife and plant resources; cultural resource values, as in providing open space, natural beauty, recreation, scientific study, historical and archaeological resources, and education; and cultivated resource values, as in creating rich soils for agriculture, aquaculture, and forestry.

(3)

Factors relevant to a proposed action's effects on the survival and quality of wetlands. These include, but are not limited to: Public health, safety, and welfare, including water supply, quality, recharge and discharge; pollution; flood and storm hazards; and sediment and erosion; maintenance of natural systems, including conservation and long term productivity of existing flora and fauna, species and habitat diversity and stability, hydrologic utility, fish, wildlife, timber, and food and fiber resources; and other uses of wetlands in the public interest, including recreational, scientific, and cultural uses.

Notes, amendments, and revision history

Amendments

[45 FR 59526, Sept. 9, 1980, as amended at 89 FR 57043, July 11, 2024]

Authority

Source

Source: 45 FR 59526, Sept. 9, 1980, unless otherwise noted.

Amendments

[45 FR 59526, Sept. 9, 1980, as amended at 89 FR 57043, July 11, 2024]

§9.11. Mitigation.

44 C.F.R. § 9.11

(a)

Purpose. This section expands upon the directives set out in § 9.6 of this part and sets out the mitigative actions required if the preliminary determination is made to carry out an action that affects or is in a floodplain or wetland.

(b)

General provisions.

(1)

The Agency shall design or modify its actions so as to minimize harm to or within the floodplain;

(2)

The Agency shall minimize the destruction, loss or degradation of wetlands;

(3)

The Agency shall restore and preserve natural and beneficial floodplain values; and

(4)

The Agency shall preserve and enhance natural and beneficial wetland values.

(c)

Minimization provisions. The Agency shall minimize:

(1)

Potential harm to lives and the investment from flooding based on flood elevations as established by § 9.7(c);

(2)

Potential adverse impacts the action may have on others; and

(3)

Potential adverse impact the action may have on floodplain and wetland values.

(d)

Minimization Standards. The Agency shall apply, at a minimum, the following standards to its actions to comply with the requirements of paragraphs (b) and (c) of this section (except as provided in § 9.5(c), (d), and (g) regarding categories of partial or total exclusion). Any Agency action to which the following specific requirements do not apply, shall nevertheless be subject to the full 8-step process (§ 9.6) including the general requirement to minimize harm to and within floodplains:

(1)

There shall be no new construction or substantial improvement in a floodway and no new construction in a coastal high hazard area, except for:

(i)

A functionally dependent use; or

(ii)

A structure or facility which facilitates an open space use.

(2)

For a structure which is a functionally dependent use or which facilitates an open space use, the following applies: Any construction of a new or substantially improved structure in a coastal high hazard area must be elevated on adequately anchored pilings or columns, and securely anchored to such piles or columns so that the lowest portion of the structural members of the lowest floor (excluding the pilings or columns) is elevated to or above the floodplain as established by § 9.7(c). The structure shall be anchored so as to withstand velocity waters and hurricane wave wash.

(3)

The following applies to elevation of structures:

(i)

There shall be no new construction or substantial improvement of structures unless the lowest floor of the structures (including basement) is at or above the elevation of the floodplain as established by § 9.7(c).

(ii)

If the subject structure is nonresidential, instead of elevating the structure, FEMA may approve the design of the structure and its attendant utility and sanitary facilities so that the structure is watertight below the flood elevation with walls substantially impermeable to the passage of water and with structural components having the capability of resisting hydrostatic and hydrodynamic loads and effects of buoyancy.

(iii)

The provisions of paragraphs (d)(3)(i) and (ii) of this section do not apply to the extent that FEMA Resilience has granted an exception under § 60.6(b) of this chapter, or the community has granted a variance which the Regional Administrator determines is consistent with § 60.6(a) of this chapter. In a community which does not have a FEMA regulatory product in effect, FEMA may approve a variance from the standards of paragraphs (d)(3)(i) and (ii) of this section, after compliance with the standards of § 60.6(a).

(4)

There shall be no encroachments, including but not limited to fill, new construction, substantial improvements of structures or facilities, or other development within a designated regulatory floodway that would result in any increase in flood elevation within the community during the occurrence of the 1 percent annual chance (base) flood discharge. Until a regulatory floodway is designated, no fill, new construction, substantial improvements, or other development shall be permitted within the 1 percent annual chance (base) floodplain unless it is demonstrated that the cumulative effect of the proposed development, when combined with all other existing and anticipated development, will not increase the water surface elevation of the 1 percent annual chance (base) flood more than the amount designated by the NFIP or the community, whichever is most restrictive.

(5)

Even if an action is a functionally dependent use or facilitates open space uses (under paragraph (d)(1) or (2) of this section) and does not increase flood heights (under paragraph (d)(4) of this section), such action may only be taken in a floodway or coastal high hazard area if:

(i)

Such site is the only practicable alternative; and

(ii)

Harm to and within the floodplain is minimized.

(6)

In addition to standards (d)(1) through (d)(5) of this section, no action may be taken if it is inconsistent with the criteria of the National Flood Insurance Program (44 CFR part 59 et seq.) or any more restrictive Federal, State or local floodplain management standards.

(7)

New construction and substantial improvement of structures shall be elevated on open works (walls, columns, piers, piles, etc.) rather than on fill, in all cases in coastal high hazard areas and elsewhere, where practicable.

(8)

To minimize the effect of floods on human health, safety and welfare, the Agency shall—

(i)

Where appropriate, integrate all of its proposed actions in floodplains into existing flood warning and preparedness plans and ensure that available flood warning time is reflected;

(ii)

Facilitate adequate access and egress to and from the site of the proposed action; and

(iii)

Give special consideration to the unique hazard potential in flash flood, rapid-rise or tsunami areas.

(9)

In the replacement of building contents, materials and equipment, the Regional Administrator shall require as appropriate, flood proofing and/or elevation of the building and/or elimination of such future losses by relocation of those building contents, materials, and equipment outside or above the floodplain as established by § 9.7(c).

(e)

Restore and preserve.

(1)

For any action taken by the Agency which affects the floodplain or wetland and which has resulted in, or will result in, harm to the floodplain or wetland, the Agency shall act to restore and preserve the natural and beneficial values served by floodplains and wetlands.

(2)

Where floodplain or wetland values have been degraded by the proposed action, the Agency shall identify, evaluate, and implement measures to restore the values.

(3)

If an action will result in harm to or within the floodplain or wetland, the Agency shall design or modify the action to preserve as much of the natural and beneficial floodplain and wetland values as is possible.

Notes, amendments, and revision history

Amendments

[45 FR 59526, Sept. 9, 1980, as amended at 46 FR 51752, Oct. 22, 1981; 48 FR 44543, Sept. 29, 1983; 49 FR 33879, Aug. 27, 1984; 49 FR 35584, Sept. 10, 1984; 50 FR 40006, Oct. 1, 1985; 89 FR 57044, July 11, 2024]

Authority

Source

Source: 45 FR 59526, Sept. 9, 1980, unless otherwise noted.

Amendments

§9.12. Final public notice.

44 C.F.R. § 9.12

If the Agency decides to take an action in or affecting a floodplain or wetland, it shall provide the public with a statement of its final decision and shall explain the relevant factors considered by the Agency in making this determination.

(a)

In addition, those sent notices under § 9.8 shall also be provided the final notice.

(b)

For actions for which an environmental impact statement is being prepared, the FEIS is adequate to constitute final notice in all cases except where:

(1)

Significant modifications are made in the FEIS after its initial publication;

(2)

Significant modifications are made in the development plan for the proposed action; or

(3)

Significant new information becomes available in the interim between issuance of the FEIS and implementation of the proposed action.

(c)

For actions for which an environmental assessment was prepared, the Notice of No Significant Impact is adequate to constitute final public notice, if it includes the information required under paragraph (e) of this section.

(d)

(1)

For all other actions, the finding shall be made in a document separate from those described in paragraphs (a), (b), and (c) of this section. Based on an assessment of the following factors, the requirement for final notice may be met in a cumulative manner:

(i)

Scale of the action;

(ii)

Potential for controversy;

(iii)

Degree of public need;

(iv)

Number of affected agencies and individuals;

(v)

Its anticipated potential impact; and

(vi)

Similarity of the actions, i.e., to the extent that they are susceptible of common descriptions and assessments.

(2)

When a damaged structure or facility is already being repaired by the State or local government at the time of the project application, the requirements of Steps 2 and 7 (§ 9.8 and this section) may be met by a single notice. Such notice shall contain all the information required by both sections.

(e)

The final notice shall include the following:

(1)

A statement of why the proposed action must be located in an area affecting or affected by a floodplain or a wetland;

(2)

A description of all significant facts considered in making this determination;

(3)

A list of the alternatives considered;

(4)

A statement indicating whether the action conforms to applicable state and local floodplain protection standards;

(5)

A statement indicating how the action affects or is affected by the floodplain and/or wetland, and how mitigation is to be achieved;

(6)

Identification of the responsible official or organization for implementation and monitoring of the proposed action, and from whom further information can be obtained; and

(7)

A map of the area or a statement that such map is available for public inspection, including the location at which such map may be inspected and a telephone number to call for information.

(f)

After providing the final notice, the Agency shall, without good cause shown, wait at least 15 days before carrying out the action.

Notes, amendments, and revision history

Amendments

[45 FR 59526, Sept. 9, 1980, as amended at 48 FR 29318, June 24, 1983; 89 FR 57045, July 11, 2024]

Authority

Source

Source: 45 FR 59526, Sept. 9, 1980, unless otherwise noted.

Amendments

[45 FR 59526, Sept. 9, 1980, as amended at 48 FR 29318, June 24, 1983; 89 FR 57045, July 11, 2024]

§9.13. Particular types of temporary housing.

44 C.F.R. § 9.13

(a)

This section sets forth the procedures whereby the Agency will provide certain specified types of temporary housing at a private, commercial, or group site.

(b)

Prior to providing the temporary housing described in paragraph (a) of this section, the Agency shall comply with the provisions of this section. For temporary housing not enumerated above, the full 8-step process (see § 9.6) applies.

(c)

The actions described in paragraph (a) of this section are subject to the following decision-making process:

(1)

The temporary housing action shall be evaluated in accordance with the provisions of § 9.7 to determine if it is in or affects the 1 percent annual chance (base) floodplain or wetland.

(2)

No temporary housing unit may be placed on a site in a floodway or coastal high hazard area.

(3)

An individual or family shall not be housed in the 1 percent annual chance (base) floodplain or wetland unless the Regional Administrator has complied with the provisions of § 9.9 to determine that such site is the only practicable alternative. The following factors shall be substituted for the factors in § 9.9(c) and (e)(2) through (4):

(i)

Speedy provision of temporary housing;

(ii)

Potential flood risk to the temporary housing occupant;

(iii)

Cost effectiveness;

(iv)

Social and neighborhood patterns;

(v)

Timely availability of other housing resources; and

(vi)

Potential harm to the floodplain or wetland.

(4)

For temporary housing units at group sites, Step 4 of the 8-step process shall be applied in accordance with § 9.10.

(5)

An individual or family shall not be housed in a floodplain or wetland (except in existing resources) unless the Regional Administrator has complied with the provisions of § 9.11 to minimize harm to and within floodplains and wetlands. The following provisions shall be substituted for the provisions of § 9.11(d) for temporary housing units:

(i)

No temporary housing unit may be placed unless it is elevated to the fullest extent practicable up to the base flood elevation and adequately anchored.

(ii)

No temporary housing unit may be placed if such placement is inconsistent with the criteria of the NFIP (44 CFR parts 59 and 60) or any more restrictive Federal, State, or local floodplain management standard. Such standards may require elevation to the base flood elevation in the absence of a variance.

(iii)

Temporary housing units shall be elevated on open works (walls, columns, piers, piles, etc.) rather than on fill where practicable.

(iv)

To minimize the effect of floods on human health, safety and welfare, the Agency shall—

(A)

Where appropriate, integrate all of its proposed actions in placing temporary housing units for temporary housing in floodplains into existing flood warning or preparedness plans and ensure that available flood warning time is reflected;

(B)

Provide adequate access and egress to and from the proposed site of the temporary housing unit; and

(C)

Give special consideration to the unique hazard potential in flash flood and rapid-rise areas.

(6)

FEMA shall comply with Step 2 Early Public Notice (§ 9.8(c)) and Step 7 Final Public Notice (§ 9.12). In providing these notices, the emergency nature of temporary housing shall be taken into account.

(7)

FEMA shall carry out the actions in accordance with Step 8, ensuring the requirements of this section and the decision-making process are fully integrated into the provision of temporary housing.

(d)

The following applies to the permanent installation of a temporary housing unit as part of a sale or disposal of temporary housing:

(1)

FEMA shall not permanently install temporary housing units in floodways or coastal high hazard areas. FEMA shall not permanently install a temporary housing unit in floodplains as established by 9.7(c) or wetlands unless there is full compliance with the 8-step process. Given the vulnerability of temporary housing units to flooding, a rejection of a non-floodplain location alternative and of the no-action alternative shall be based on:

(i)

A compelling need of the family or individual to buy a temporary housing unit for permanent housing; and

(ii)

A compelling requirement to permanently install the unit in a floodplain.

(2)

FEMA shall not permanently install temporary housing units in the floodplain as established by § 9.7(c) unless they are or will be elevated at least to the elevation of the floodplain as established by § 9.7(c).

(3)

The Regional Administrator shall notify FEMA Resilience of each instance where a floodplain location has been found to be the only practicable alternative for permanent installation of a temporary housing unit.

Notes, amendments, and revision history

Amendments

[45 FR 59526, Sept. 9, 1980, as amended at 47 FR 13149, Mar. 29, 1982; 49 FR 35584, Sept. 10, 1984; 50 FR 40006, Oct. 1, 1985; 89 FR 57045, July 11, 2024]

Authority

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 35584, Sept. 10, 1984; 50 FR 40006, Oct. 1, 1985; 89 FR 57045, July 11, 2024]