44 CFR Part 9

Federal Emergency Management Agency, DHS

§ 9.2

9.18 Responsibilities.
APPENDIX A TO PART 9—DECISION-MAKING
PROCESS FOR E.O. 11988

(2) Advise the complainant of his or
her right to bring a civil action for injunctive relief; and
(3) Inform the complainant:
(i) That the complainant may bring a
civil action only in a United States
District Court for the district in which
the recipient is located or transacts
business;
(ii) That a complainant prevailing in
a civil action has the right to be
awarded the costs of the action, including reasonable attorney’s fees, but that
the complainant must demand these
costs in the complaint at the time it is
filed.
(iii) That before commencing the action, the complainant shall give 30
days notice by registered mail to the
Administrator, the Attorney General
of the United States, and the recipient;
(iv) That the notice must state: The
alleged violation of the Act; the relief
requested; the court in which the complainant is bringing the action; and
whether or not attorney’s fees are demanded in the event the complainant
prevails; and
(v) That the complainant may not
bring an action if the same alleged violation of the Act by the same recipient
is the subject of a pending action in
any court (Federal or State) of the
United States.

AUTHORITY: E.O. 11988 of May 24, 1977. 3
CFR, 1977 Comp., p. 117; E.O. 11990 of May 24
1977, 3 CFR, 1977 Comp. p. 121; Reorganization
Plan No. 3 of 1978, 43 FR 41943, 3 CFR, 1978
Comp., p. 329; E.O. 12127 of March 31, 1979, 44
FR 19367, 3 CFR, 1979 Comp., p. 376; E.O. 12148
of July 20, 1979, 44 FR 43239, 3 CFR, 1979
Comp., p. 412, as amended.; E.O. 12127; E.O.
12148; 42 U.S.C. 5201.
SOURCE: 45 FR 59526, Sept. 9, 1980, unless
otherwise noted.

§ 9.1 Purpose of part.
This regulation sets forth the policy,
procedure and responsibilities to implement and enforce Executive Order
11988, Floodplain Management, and Executive Order 11990, Protection of Wetlands.
§ 9.2 Policy.
(a) FEMA shall take no action unless
and until the requirements of this regulation are complied with.
(b) It is the policy of the Agency to
provide leadership in floodplain management and the protection of wetlands. Further, the Agency shall integrate the goals of the Orders to the
greatest possible degree into its procedures for implementing NEPA. The
Agency shall take action to:
(1) Avoid long- and short-term adverse impacts associated with the occupancy and modification of floodplains
and the destruction and modification
of wetlands;
(2) Avoid direct and indirect support
of floodplain development and new construction in wetlands wherever there is
a practicable alternative;
(3) Reduce the risk of flood loss;
(4) Promote the use of nonstructural
flood protection methods to reduce the
risk of flood loss;
(5) Minimize the impact of floods on
human health, safety and welfare;
(6) Minimize the destruction, loss or
degradation of wetlands;
(7) Restore and preserve the natural
and beneficial values served by
floodplains;
(8) Preserve and enhance the natural
values of wetlands;
(9) Involve the public throughout the
floodplain management and wetlands
protection decision-making process;

PART 8 [RESERVED]
PART 9—FLOODPLAIN MANAGEMENT AND PROTECTION OF WETLANDS
Sec.
9.1 Purpose of part.
9.2 Policy.
9.3 Authority.
9.4 Definitions.
9.5 Scope.
9.6 Decision-making process.
9.7 Determination of proposed action’s location.
9.8 Public notice requirements.
9.9 Analysis and reevaluation of practicable
alternatives.
9.10 Identify impacts of proposed actions.
9.11 Mitigation.
9.12 Final public notice.
9.13 Particular types of temporary housing.
9.14 Disposal of Agency property.
9.15 Planning programs affecting land use.
9.16 Guidance for applicants.
9.17 Instructions to applicants.

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§ 9.3

44 CFR Ch. I (10–1–14 Edition)
modification of wetlands and the direct
or indirect support of new construction
in wetlands.
Administrator means the Administrator of the Federal Emergency Management Agency.
Agency means the Federal Emergency
Management Agency (FEMA).
Agency Assistance means grants for
projects or planning activities, loans,
and all other forms of financial or technical assistance provided by the Agency.
Base Flood means the flood which has
a one percent chance of being equalled
or exceeded in any given year (also
known as a 100-year flood). This term is
used in the National Flood Insurance
Program (NFIP) to indicate the minimum level of flooding to be used by a
community in its floodplain management regulations.
Base Floodplain means the 100-year
floodplain (one percent chance floodplain).
Coastal High Hazard Area means the
areas subject to high velocity waters
including but not limited to hurricane
wave wash or tsunamis. On a Flood Insurance Rate Map (FIRM), this appears
as zone V1–30, VE or V.
Critical Action means an action for
which even a slight chance of flooding
is too great. The minimum floodplain
of concern for critical actions is the
500-year floodplain, i.e., critical action
floodplain. Critical actions include, but
are not limited to, those which create
or extend the useful life of structures
or facilities:
(a) Such as those which produce, use
or store highly volatile, flammable, explosive, toxic or water-reactive materials;
(b) Such as hospitals and nursing
homes, and housing for the elderly,
which are likely to contain occupants
who may not be sufficiently mobile to
avoid the loss of life or injury during
flood and storm events;
(c) Such as emergency operation centers, or data storage centers which contain records or services that may become lost or inoperative during flood
and storm events; and
(d) Such as generating plants, and
other principal points of utility lines.

(10) Adhere to the objectives of the
Unified National Program for Floodplain Management; and
(11) Improve and coordinate the
Agency’s plans, programs, functions
and resources so that the Nation may
attain the widest range of beneficial
uses of the environment without degradation or risk to health and safety.
§ 9.3 Authority.
The authority for these regulations
is (a) Executive Order 11988, May 24,
1977, which replaced Executive Order
11296, August 10, 1966, (b) Executive
Order 11990, May 24, 1977, (c) Reorganization Plan No. 3 of 1978 (43 FR 41943);
and (d) Executive Order 12127, April 1,
1979 (44 FR 1936). E.O. 11988 was issued
in furtherance of the National Flood
Insurance Act of 1968, as amended (Pub.
L. 90–488); the Flood Disaster Protection Act of 1973, as amended (Pub. L.
93–234); and the National Environmental Policy Act of 1969 (NEPA) (Pub.
L. 91–190). Section 2(d) of Executive
Order 11988 requires issuance of new or
amended regulations and procedures to
satisfy its substantive and procedural
provisions. E.O. 11990 was issued in furtherance of NEPA, and at section 6 required issuance of new or amended regulations and procedures to satisfy its
substantive and procedural provisions.
[45 FR 59526, Sept. 9, 1980, as amended at 48
FR 44543, Sept. 29, 1983]

§ 9.4 Definitions.
The following definitions shall apply
throughout this regulation.
Action means any action or activity
including: (a) Acquiring, managing and
disposing of Federal lands and facilities; (b) providing federally undertaken, financed or assisted construction and improvements; and (c) conducting Federal activities and programs affecting land use, including,
but not limited to, water and related
land resources, planning, regulating
and licensing activities.
Actions Affecting or Affected by
Floodplains or Wetlands means actions
which have the potential to result in
the long- or short-term impacts associated with (a) the occupancy or modification of floodplains, and the direct
or indirect support of floodplain development, or (b) the destruction and

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Federal Emergency Management Agency, DHS
Direct Impacts means changes in
floodplain or wetland values and functions and changes in the risk to lives
and property caused or induced by an
action or related activity. Impacts are
caused whenever these natural values
and functions are affected as a direct
result of an action. An action which
would result in the discharge of polluted storm waters into a floodplain or
wetland, for example, would directly
affect their natural values and functions. Construction-related activities,
such as dredging and filling operations
within the floodplain or a wetland
would be another example of impacts
caused by an action.
Emergency Actions means emergency
work essential to save lives and protect
property and public health and safety
performed under sections 305 and 306 of
the Disaster Relief Act of 1974 (42
U.S.C. 5145 and 5146). See 44 CFR part
205, subpart E.
Enhance means to increase, heighten,
or improve the natural and beneficial
values associated with wetlands.
Facility means any man-made or
man-placed item other than a structure.
FEMA means the Federal Emergency
Management Agency.
FIA means the Federal Insurance Administration.
Five Hundred Year Floodplain (the 500year floodplain or 0.2 percent change
floodplain) means that area, including
the base floodplain, which is subject to
inundation from a flood having a 0.2
percent chance of being equalled or exceeded in any given year.
Flood or flooding means a general and
temporary condition of partial or complete inundation of normally dry land
areas from the overflow of inland and/
or tidal waters, and/or the unusual and
rapid accumulation or runoff of surface
waters from any source.
Flood Fringe means that portion of
the floodplain outside of the floodway
(often
referred
to
as
‘‘floodway
fringe’’).
Flood Hazard Boundary Map (FHBM)
means an official map of a community,
issued by the Administrator, where the
boundaries of the flood, mudslide (i.e.,
mudflow) and related erosion areas
having special hazards have been designated as Zone A, M, or E.

§ 9.4

Flood Insurance Rate Map (FIRM)
means an official map of a community
on which the Administrator has delineated both the special hazard areas and
the risk premium zones applicable to
the community. FIRMs are also available digitally, and are called Digital
Flood Insurance Rate Maps (DFIRM).
Flood Insurance Study (FIS) means an
examination, evaluation and determination of flood hazards and, if appropriate, corresponding water surface elevations or an examination, evaluation
and determination of mudslide (i.e.,
mudflow) and/or flood-related erosion
hazards.
Floodplain means the lowland and relatively flat areas adjoining inland and
coastal waters including, at a minimum, that area subject to a one percent or greater chance of flooding in
any given year. Wherever in this regulation the term ‘‘floodplain’’ is used, if
a critical action is involved, ‘‘floodplain’’ shall mean the area subject to
inundation from a flood having a 0.2
percent chance of occurring in any
given
year
(500-year
floodplain).
‘‘Floodplain’’ does not include areas
subject only to mudflow until FIA
adopts maps identifying ‘‘M’’ Zones.
Floodproofing means the modification
of individual structures and facilities,
their sites, and their contents to protect against structural failure, to keep
water out, or to reduce effects of water
entry.
Floodway means that portion of the
floodplain which is effective in carrying flow, within which this carrying
capacity must be preserved and where
the flood hazard is generally highest,
i.e., where water depths and velocities
are the greatest. It is that area which
provides for the discharge of the base
flood so the cumulative increase in
water surface elevation is no more
than one foot.
Functionally Dependent Use means a
use which cannot perform its intended
purpose unless it is located or carried
out in close proximity to water, (e.g.,
bridges, and piers).
Indirect Impacts means an indirect result of an action whenever the action
induces or makes possible related activities which effect the natural values
and functions of floodplains or wetlands or the risk to lives and property.

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§ 9.4

44 CFR Ch. I (10–1–14 Edition)
Regional Administrator means the Regional Administrator of the Federal
Emergency Management Agency for
the Region in which FEMA is acting,
or the Disaster Recovery Manager
when one is designated.
Regulatory Floodway means the area
regulated by federal, State or local requirements to provide for the discharge
of the base flood so the cumulative increase in water surface elevation is no
more than a designated amount (not to
exceed one foot as set by the National
Flood Insurance Program).
Restore means to reestablish a setting
or environment in which the natural
functions of the floodplain can again
operate.
Structures means walled or roofed
buildings, including mobile homes and
gas or liquid storage tanks.
Substantial Improvement means any
repair, reconstruction or other improvement of a structure or facility,
which has been damaged in excess of,
or the cost of which equals or exceeds,
50% of the market value of the structure or replacement cost of the facility
(including all ‘‘public facilities’’ as defined in the Disaster Relief Act of 1974)
(a) before the repair or improvement is
started, or (b) if the structure or facility has been damaged and is proposed
to be restored, before the damage occurred. If a facility is an essential link
in a larger system, the percentage of
damage will be based on the relative
cost of repairing the damaged facility
to the replacement cost of the portion
of the system which is operationally
dependent on the facility. The term
‘‘substantial improvement’’ does not
include any alteration of a structure or
facility listed on the National Register
of Historic Places or a State Inventory
of Historic Places.
Support means to encourage, allow,
serve or otherwise facilitate floodplain
or wetland development. Direct support results from actions within a
floodplain or wetland, and indirect support results from actions outside of
floodplains or wetlands.
Wetlands means those areas which
are inundated or saturated by surface
or ground water with a frequency sufficient to support, or that under normal
hydrologic conditions does or would
support, a prevalence of vegetation or

Such impacts occur whenever these
values and functions are potentially affected, either in the short- or longterm, as a result of undertaking an action.
Minimize means to reduce to the
smallest amount or degree possible.
Mitigation means all steps necessary
to minimize the potentially adverse effects of the proposed action, and to restore and preserve the natural and beneficial floodplain values and to preserve and enhance natural values of
wetlands.
Mitigation Directorate means the Mitigation Directorate of the Federal
Emergency Management Agency.
Natural Values of Floodplains and Wetlands means the qualities of or functions served by floodplains and wetlands which include but are not limited
to: (a) Water resource values (natural
moderation of floods, water quality
maintenance, groundwater recharge);
(b) living resource values (fish, wildlife,
plant resources and habitats); (c) cultural resource values (open space, natural beauty, scientific study, outdoor
education, archeological and historic
sites, recreation); and (d) cultivated resource
values
(agriculture,
aquaculture, forestry).
New Construction means the construction of a new structure (including the
placement of a mobile home) or facility
or the replacement of a structure or facility which has been totally destroyed.
New Construction in Wetlands includes
draining, dredging, channelizing, filling, diking, impounding, and related
activities and any structures or facilities begun or authorized after the effective dates of the Orders, May 24, 1977.
Orders means Executive Orders 11988,
Floodplain Management, and 11990,
Protection of Wetlands.
Practicable means capable of being
done within existing constraints. The
test of what is practicable depends
upon the situation and includes consideration of all pertinent factors, such as
environment, cost and technology.
Preserve means to prevent alterations
to natural conditions and to maintain
the values and functions which operate
the floodplains or wetlands in their
natural states.

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Federal Emergency Management Agency, DHS

§ 9.5

gressed beyond critical stages in the
floodplain management and wetlands
protection decision-making process, as
set out below in § 9.6. This determination need only be made at the time
that followup actions are being taken
to complete or implement the action in
question; and
(ii) Apply the provisions of the Orders and of this regulation to all such
actions to the fullest extent practicable.
(b) Limited exemption of ongoing actions involving wetlands located outside
the floodplains. (1) Executive Order
11990, Protection of Wetlands, contains
a limited exemption not found in Executive Order 11988, Floodplain Management. 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.
(2) The following proposed actions
that impact wetlands located outside
of floodplains are exempt from this
regulation:
(i) Agency-assisted or permitted
projects which were under construction
before May 24, 1977; and
(ii) 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:
(A) Only generally covers the proposed action;
(B) Is devoted largely to related activities; or
(C) Treats the project area or program without an adequate and specific
analysis of the floodplain and wetland
implications of the proposed action.
(c) Decision-making involving certain
categories of actions. The provisions set
forth in this regulation are not applicable to the actions enumerated below except that the Regional Administrators
shall comply with the spirit of the
Order to the extent practicable. For
any action which is excluded from the
actions enumerated below, the full 8step process applies (see § 9.6) (except
as indicated at paragraphs (d), (f) and

aquatic life typically adapted for life in
saturated or seasonally saturated soil
conditions. Examples of wetlands include, but are not limited to, swamps,
fresh and salt water marshes, estuaries, bogs, beaches, wet meadows,
sloughs, potholes, mud flats, river
overflows and other similar areas. This
definition includes those wetlands
areas separated from their natural supply of water as a result of activities
such as the construction of structural
flood protection methods or solid-fill
road beds and activities such as mineral extraction and navigation improvements. This definition is intended
to be consistent with the definition
utilized by the U.S. Fish and Wildlife
Service in the publication entitled
Classification of Wetlands and Deep
Water Habitats of the United States
(Cowardin, et al., 1977).
[45 FR 59526, Sept. 9, 1980, as amended at 47
FR 13149, Mar. 29, 1982; 50 FR 40006, Oct. 1,
1985; 74 FR 15335, Apr. 3, 2009]

§ 9.5 Scope.
(a) Applicability. (1) 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.
(2) 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:
(i) The occupancy or modification of
floodplains, and the direct and indirect
support of floodplain development; or
(ii) The destruction or modification
of wetlands and the direct or indirect
support of new construction in wetlands.
(3) This regulation applies to actions
that were, on the effective date of the
Orders (May 24, 1977), ongoing, in the
planning and/or development stages, or
undergoing implementation, and are
incomplete as of the effective date of
these regulations. The regulation also
applies to proposed (new) actions. The
Agency shall:
(i) Determine the applicable provisions of the Orders by analyzing whether the action in question has pro-

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§ 9.5

44 CFR Ch. I (10–1–14 Edition)

(g) of this section regarding other categories of partial or total exclusions).
The provisions of these regulations do
not apply to the following (all references are to the Disaster Relief Act
of 1974, Pub. L. 93–288, as amended, except as noted):
(1) Assistance provided for emergency
work essential to save lives and protect
property and public health and safety
performed pursuant to sections 305 and
306;
(2) Emergency Support Teams (section 304);
(3) Unemployment Assistance (section 407);
(4) Emergency Communications (section 415);
(5) Emergency Public Transportation
(section 416);
(6) Fire Management Assistance (Section 420);
(7) Community Disaster Loans (section 414), 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;
(8) The following Individual and
Family Grant Program (section 408) actions:
(i) Housing needs or expenses, except
for restoring, repairing or building private bridges, purchase of mobile homes
and provision of structures as minimum protective measures;
(ii) Personal property needs or expenses;
(iii) Transportation expenses;
(iv) Medical/dental expenses;
(v) Funeral expenses;
(vi) Limited home repairs;
(vii) Flood insurance premium;
(viii) Cost estimates;
(ix) Food expenses; and
(x) Temporary rental accommodations.
(9) Mortgage and rental assistance
under section 404(b);
(10) Use of existing resources in the
temporary housing assistance program
[section 404(a)], except that Step 1
(§ 9.7) shall be carried out;
(11) Minimal home repairs [section
404(c)];
(12) Debris removal (section 403), except those grants involving non-emergency disposal of debris within a floodplain or wetland;

(13) Repairs or replacements under
section 402, of less than $5,000 to damaged structures or facilities.
(14) 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.
(d) For each action enumerated
below, 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). 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 decisionmaking 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 indicated in paragraphs (c),
(f) and (g) of this section regarding
other categories of partial or total exclusion), the full 8-step process applies
(see § 9.6). The references are to the
Disaster Relief Act of 1974, Public Law
93–288, as amended.
(1) Actions performed under the Individual and Family Grant Program (section 408) for restoring or repairing a
private bridge, except where two or
more individuals or families are authorized to pool their grants for this
purpose.
(2) Small project grants (section 419),
except to the extent that Federal funding involved is used for construction of
new facilities or structures.
(3) Replacement of building contents,
materials and equipment. (sections 402
and 419).
(4) Repairs under section 402 to damaged facilities or structures, except
any such action for which one or more
of the following is applicable:
(i) FEMA estimated cost of repairs is
more than 50% of the estimated reconstruction cost of the entire facility or
structure, or is more than $100,000, or

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Federal Emergency Management Agency, DHS
(ii) The action is located in a
floodway or coastal high hazard area,
or
(iii) The facility or structure is one
which has previously sustained structural damage from flooding due to a
major disaster or emergency or on
which a flood insurance claim has been
paid, or
(iv) The action is a critical action.
(e) Other categories of actions. Based
upon the completion of the 8-step decision-making process (§ 9.6), the Director 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 § 9.5(c), or has no practicable
alternative sites and shall be treated as
those actions listed in § 9.5(d), or has no
practicable alternative actions or sites
and shall be treated as those actions
listed in § 9.5(g). This finding will be
made in consultation with the Federal
Insurance Administration and the
Council on Environmental Quality as
provided in section 2(d) of E.O. 11988.
Public notice of each of these determinations shall include publication in
the FEDERAL REGISTER and a 30-day
comment period.
(f) The National Flood Insurance Program (NFIP). (1) Most of what is done
by FIA or the Mitigation Directorate,
in administering the National Flood
Insurance Program is performed on a
program-wide basis. For all regulations, procedures or other issuances
making or amending program policy,
FIA or the Mitigation Directorate,
shall apply the 8-step decision-making
process to that program-wide action.
The action to which the 8-step process
must be applied is the establishment of
programmatic standards or criteria,
not the application of programmatic
standards or criteria to specific situations. Thus, for example, FIA or the
Mitigation Directorate, 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 two prime examples of where FIA
or the Mitigation Directorate, does
take site specific actions which would
require individual application of the 8step process are property acquisition
under section 1362 of the National

§ 9.5

Flood Insurance Act of 1968, as amended, and the issuance of an exception to
a community under 44 CFR 60.6(b). (See
also § 9.9(e)(6) and § 9.11(e).)
(2) The provisions set forth in this
regulation are not applicable to the actions enumerated below except that
the Federal Insurance Administrator
or the Assistant Administrator for
Mitigation, as appropriate shall comply with the spirit of the Orders to the
extent practicable:
(i) The issuance of individual flood
insurance policies and policy interpretations;
(ii) The adjustment of claims made
under the Standard Flood Insurance
Policy;
(iii) The hiring of independent contractors to assist in the implementation of the National Flood Insurance
Program;
(iv) The issuance of individual flood
insurance maps, Map Information Facility map determinations, and map
amendments; and
(v) The conferring of eligibility for
emergency or regular program (NFIP)
benefits upon communities.
(g) For the action listed below, the
Regional Administrator shall apply
steps 1, 4, 5 and 8 of the decision-making process (§§ 9.7, 9.10 and 9.11). For
any action which is excluded from the
actions listed below, (except as indicated in paragraphs (c), (d) and (f) of
this section regarding other categories
of partial or total exclusion), the full 8step process applies (See § 9.6). The Regional Administrator may also require
certain other portions of the decisionmaking process to be carried out for individual actions as is deemed necessary. The references are to the Disaster Relief Act of 1974, Public Law 93–
288. The above requirements apply to
repairs, under section 402, between
$5,000 and $25,000 to damaged structures
of facilities except for:
(1) Actions in a floodway or coastal
high hazard area; or
(2) New or substantially improved
structures or facilities; or
(3) Facilities or structures which
have previously sustained structural

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§ 9.6

44 CFR Ch. I (10–1–14 Edition)

damage from flooding due to a major
disaster or emergency.

tential direct and indirect support of
floodplain and wetland development
that could result from the proposed action (see § 9.10);
Step 5. Minimize the potential adverse impacts and support to or within
floodplains and wetlands to be 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 (see § 9.11);
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 the 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);
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
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.

[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]

§ 9.6 Decision-making process.
(a) Purpose. The purpose of this section is to set out the floodplain management and wetlands protection decision-making process to be followed by
the Agency in applying the Orders to
its actions. While the decision-making
process was initially designed to address the floodplain Order’s requirements, the process will also satisfy the
wetlands Order’s provisions due to the
close similarity of the two directives.
The numbering of Steps 1 through 8
does not firmly require that the steps
be followed sequentially. As information is gathered throughout the decision-making process and as additional
information is needed, reevaluation of
lower numbered steps may be necessary.
(b) Except as otherwise provided in
§ 9.5 (c), (d), (f), and (g) regarding categories of partial or total exclusion
when proposing an action, the Agency
shall apply the 8-step decision-making
process. FEMA shall:
Step 1. Determine whether the proposed action is located in a wetland
and/or the 100-year floodplain (500-year
floodplain for critical actions); and
whether it has the potential to affect
or be affected by a floodplain or wetland (see § 9.7);
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);
Step 3. Identify and evaluate practicable alternatives to locating the
proposed action in a floodplain or wetland (including alternative sites, actions 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.
Step 4. Identify the potential direct
and indirect impacts associated with
the occupancy or modification of
floodplains and wetlands and the po-

[45 FR 59526, Sept. 9, 1980, as amended at 49
FR 35583, Sept. 10, 1984; 50 FR 40006, Oct. 1,
1985]

§ 9.7 Determination of proposed action’s location.
(a) The purpose of this section is to
establish Agency procedures for determining whether any action as proposed
is located in or affects (1) the base
floodplain (the Agency shall substitute
the 500-year floodplain for the base
floodplain where the action being proposed involves a critical action), or (2)
a wetland.
(b) Information needed. The Agency
shall obtain enough information so
that it can fulfill the requirements of
the Orders to (1) avoid floodplain and
wetland locations unless they are the
only practicable alternatives; and (2)
minimize
harm
to
and
within

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Federal Emergency Management Agency, DHS

§ 9.7

Federal Insurance Administration
FEMA Regional Offices/Natural and Technological Hazards Division
Department of the Interior:
Geological Survey
Bureau of Land Management
Bureau of Reclamation
Tennessee Valley Authority
Delaware River Basin Commission
Susquehanna River Basin Commission
States

floodplains and wetlands. In all cases,
FEMA shall determine whether the
proposed action is located in a floodplain or wetland. In the absence of a
finding to the contrary, FEMA may assume that a proposed action involving
a facility or structure that has been
flooded is in the floodplain. Information about the 100-year and 500-year
floods and location of floodways and
coastal high hazard areas may also be
needed to comply with these regulations, especially § 9.11. The following
additional
flooding
characteristics
shall be identified by the Regional Administrator as appropriate:
(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.
(c) Floodplain determination. (1) In the
search for flood hazard information,
FEMA shall follow the sequence below:
(i) The Regional Administrator shall
consult the FEMA Flood Insurance
Rate Map (FIRM) the Flood Boundary
Floodway Map (FBFM) and the Flood
Insurance Study (FIS).
(ii) If a detailed map (FIRM or
FBFM) is not available, the Regional
Administrator shall consult an FEMA
Flood Hazard Boundary Map (FHBM) .
If data on flood elevations, floodways,
or coastal high hazard areas are needed, or if the map does not delineate the
flood hazard boundaries in the vicinity
of the proposed site, the Regional Administrator shall seek the necessary
detailed information and assistance
from the sources listed below.

(iii) If the sources listed do not have
or know of the information necessary
to comply with the Orders’ requirements, the Regional Administrator
shall seek the services of a Federal or
other engineer experienced in this type
of work.
(2) If a decision involves an area or
location within extensive Federal or
state holdings or a headwater area, and
an FIS, FIRM, FBFM, or FHBM is 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 this section. If
none of these sources has information
or can provide assistance, the services
of an experienced Federal or other engineer shall be sought as described
above.
(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 state or other 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 performance definition of what constitutes a wetland.
(4) If an action is in a wetland but
not in a floodplain, and the action is

SOURCES OF MAPS AND TECHNICAL
INFORMATION
Department of Agriculture: Soil Conservation Service
Department of the Army: Corps of Engineers
Department of Commerce: National Oceanic
and Atmospheric Administration

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§ 9.8

44 CFR Ch. I (10–1–14 Edition)
an EIS is adequate to constitute 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 shall use the FEDERAL REGISTER as the minimum means
for notice, 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 base its determination of appropriate notices, adequate comment periods, and whether to
issue cumulative notices (paragraphs
(c)(4), (6) and (7) of this section) 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) Its anticipated potential impact.
(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 entail as appropriate:
(i) [Reserved]
(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
(in papers of general circulation rather
than legal papers).
(v) Notice through other local media.
(vi) Notice to potentially interested
community organizations.
(vii) Publication in newsletters that
may be expected to reach potentially
interested persons.
(viii) Direct mailing to owners and
occupants of nearby or affected property.
(ix) Posting of notice on and off site
in the area where the action is to be located.
(x) Holding a public hearing.
(5) The notice shall include:

new construction, the provisions of
this regulation shall apply. Even 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
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 floodplain.
[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]

§ 9.8 Public notice requirements.
(a) Purpose. The purpose of this section is to establish the initial notice
procedures to be followed when proposing 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

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Federal Emergency Management Agency, DHS
(i) A description of the action, its
purpose 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, a map of the area
or other indentification of the floodplain and/or wetland areas which is of
adequate scale and detail so that the
location is discernible; instead of publication of such map, 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;
(iii) Based on the factors in paragraph (c)(3) of this section, a description of the type, extent and degree of
hazard involved and the floodplain or
wetland values present; and
(iv) Identification of 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.

§ 9.9

§ 9.9 Analysis and reevaluation of
practicable alternatives.
(a) Purpose. (1) The purpose of this
section is to expand upon the directives
set out in § 9.6, of this part, in order to
clarify and emphasize the Orders’ key
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 decisionmaking 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; 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 (topography,
habitat, hazards, etc.);

[45 FR 59526, Sept. 9, 1980, as amended at 48
FR 29318, June 24, 1983]

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§ 9.10

44 CFR Ch. I (10–1–14 Edition)

(2) Social concerns (aesthetics, historical and cultural values, land patterns, etc.);
(3) Economic aspects (costs of space,
construction, services, and relocation);
and
(4) Legal constraints (deeds, leases,
etc.).
(d) Action following the analysis of
practicable alternatives. (1) The Agency
shall not locate the proposed action in
the floodplain or in a wetland if a practicable alternative exists outside the
floodplain or wetland.
(2) For critical actions, the Agency
shall not locate the proposed action in
the 500-year floodplain if a practicable
alternative exists outside the 500-year
floodplain.
(3) Even 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 in light of
the exposure to flood risk and the ensuing disruption of natural values;
(ii) The floodplain or wetland site is
the only practicable alternative;
(iii) There is a potential for limiting
the action to increase the practicability of previously rejected non-floodplain or wetland sites and alternative
actions; and
(iv) Minimization of harm to or within the floodplain can be achieved using
all practicable means.
(2) Take no action in a floodplain unless the importance of the floodplain
site clearly outweighs the requirement
of E.O. 11988 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 of
E.O. 11990 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, the great
weight intended by the Orders.
(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.
(6) In any case in which the Regional
Director has selected the ‘‘no action’’
option, FIA may not provide a new or
renewed contract of flood insurance for
that structure.
EFFECTIVE DATE NOTE: At 45 FR 79070, Nov.
28, 1980, § 9.9(e)(6) was temporarily suspended
until further notice.

§ 9.10 Identify impacts of proposed actions.
(a) Purpose. The purpose of this section is to ensure 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

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Federal Emergency Management Agency, DHS
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 the Orders to avoid
floodplain and wetland locations unless
they are the only practicable alternatives and 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. Regional Offices of the U.S. Fish and Wildlife Service may be contacted to aid in the identification and evaluation of potential
impacts of the proposed action on natural and beneficial floodplain and wetland values.
(d) In the review of a proposed or alternative action, the Regional Administrator shall specifically 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 for example, the factors listed
in § 9.7(b)(2);
(2) Natural values-related factors.
These include, for example, the following: Water resource values (natural
moderation of floods, water quality
maintenance, and ground water recharge); living resource values (fish
and wildlife and biological productivity); cultural resource values (archeological and historic sites, and open
space recreation and green belts); and
agricultural, aquacultural and forestry
resource values.
(3) Factors relevant to a proposed action’s effects on the survival and quality
of wetlands. These include, for example,

§ 9.11

the following: 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.
§ 9.11 Mitigation.
(a) Purpose. The purpose of this section is to expand upon the directives
set out in § 9.6 of this part, and to set
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 at risk from the base flood,
or, in the case of critical actions, from
the 500-year flood;
(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. In its implementation of the Disaster Relief Act
of 1974, 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

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§ 9.11

44 CFR Ch. I (10–1–14 Edition)

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. There shall be no construction
of a new or substantially improved
structure in a coastal high hazard area
unless it is 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 base flood level
(the 500-year flood level for critical actions) (including wave height). The
structure shall be anchored so as to
withstand velocity waters and hurricane wave wash. The Regional Administrator shall be responsible for determining the base flood level, including
the wave height, in all cases. Where
there is a FIRM in effect, it shall be
the basis of the Regional Administrator’s determination. If the FIRM does
not reflect wave heights, or if there is
no FIRM in effect, the Regional Administrator is responsible for delineating the base flood level, including
wave heights.
(3) 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
level of the base flood.
(ii) There shall be no new construction or substantial improvement of
structures involving a critical action
unless the lowest floor of the structure
(including the basement) is at or above
the level of the 500-year flood.
(iii) If the subject structure is nonresidential, FEMA may, instead of elevating the structure to the 100-year or
500-year level, as appropriate, approve
the design of the structure and its attendant utility and sanitary facilities
so that below the flood level the structure is water tight with walls substan-

tially impermeable to the passage of
water and with structural components
having the capability of resisting hydrostatic and hydrodynamic loads and
effects of buoyancy.
(iv) The provisions of paragraphs
(d)(3)(i), (ii), and (iii) of this section do
not apply to the extent that the Federal Insurance Administration has
granted an exception under 44 CFR
§ 60.6(b) (formerly 24 CFR 1910.6(b)), or
the community has granted a variance
which the Regional Administrator determines is consistent with 44 CFR
60.6(a) (formerly 24 CFR 1910.6(a)). In a
community which does not have a
FIRM in effect, FEMA may approve a
variance from the standards of paragraphs (d)(3)(i), (ii), and (iii) of this section, after compliance with the standards of 44 CFR 60.6(a).
(4) There shall be no encroachments,
including 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
levels within the community during
the occurrence of the base flood discharge. Until a regulatory floodway is
designated, no new construction, substantial improvements, or other development (including fill) shall be permitted within the 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 base flood more than one
foot at any point within the community.
(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

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Federal Emergency Management Agency, DHS
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, disaster proofing of the
building and/or elimination of such future losses by relocation of those building contents, materials and equipment
outside or above the base floodplain or
the 500-year floodplain for critical actions.
(e) In the implementation of the National Flood Insurance Program. (1) The
Federal Insurance Administration shall
make identification of all coastal high
hazard areas a priority;
(2) Beginning October 1, 1981, the
Federal Insurance Administration of
FEMA may only provide flood insurance for new construction or substantial improvements in a coastal high
hazard area if:
(i) Wave heights have been designated for the site of the structure either by the Administrator of FEMA
based upon data generated by FEMA or
by another source, satisfactory to the
Administrator; and
(ii) The structure is rated by FEMAFIA based on a system which reflects
the capacity to withstand the effects of
the 100-year frequency flood including,
but not limited to, the following factors:
(A) Wave heights;
(B) The ability of the structure to
withstand the force of waves.

§ 9.11

(3)(i) FEMA shall accept and take
fully into account information submitted by a property owner indicating
that the rate for a particular structure
is too high based on the ability of the
structure to withstand the force of
waves. In order to obtain a rate adjustment, a property owner must submit to
FEMA specific information regarding
the structure and its immediate environment. Such information must be
certified by a registered professional
architect or engineer who has demonstrable experience and competence in
the fields of foundation, soils, and
structural engineering. Such information should include:
(A) Elevation of the structure (bottom of lowest floor beam) in relation to
the Base Flood Elevation including
wave height;
(B) Distance of the structure from
the shoreline;
(C) Dune protection and other environmental factors;
(D) Description of the building support system; and
(E) Other relevant building details.
Adequate completion of the ‘‘V-Zone
Risk Factor Rating Form’’ is sufficient
for FEMA to determine whether a rate
adjustment is appropriate. The form is
available from and applications for
rate adjustments should be submitted
to:
National Flood Insurance Program
Attention: V-Zone Underwriting Specialist
9901–A George Palmer Highway
Lanham, MD 20706

Pending a determination on a rate adjustment, insurance will be issued at
the class rate. If the rate adjustment is
granted, a refund of the appropriate
portion of the premium will be made.
Unless a property owner is seeking an adjustment of the rate prescribed by FEMAFIA, this information need not be submitted.
(ii) FIA shall notify communities
with coastal high hazard areas and federally related lenders in such communities, of the provisions of this paragraph. Notice to the lenders may be accomplished by the Federal instrumentalities to which the lenders are related.
(4) In any case in which the Regional
Director
has
been,
pursuant
to

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§ 9.12

44 CFR Ch. I (10–1–14 Edition)

§ 9.11(d)(1), precluded from providing assistance for a new or substantially improved structure in a floodway, FIA
may not provide a new or renewed policy of flood insurance for that structure.
(f) 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.

If any of these situations develop, the
Agency shall prepare a separate final
notice that contains the contents of
paragraph (e) of this section and shall
make it available to those who received the FEIS. A minimum of 15 days
shall, without good cause shown, be allowed for comment on the final notice.
(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) 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:
(1) Scale of the action;
(2) Potential for controversy;
(3) Degree of public need;
(4) Number of affected agencies and
individuals;
(5) Its anticipated potential impact;
and
(6) Similarity of the actions, i.e., to
the extent that they are susceptible of
common descriptions and assessments.
When a damaged structure or facility
is already being repaired by the State
or local government at the time of the
Damage Survey Report, the requirements of Steps 2 and 7 (§§ 9.8 and 9.12)
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;

[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]
EFFECTIVE DATE NOTE: At 45 FR 79070, Nov.
28, 1980, § 9.11(e)(4) was temporarily suspended until further notice.

§ 9.12 Final public notice.
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.

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Federal Emergency Management Agency, DHS
(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.

§ 9.13

(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) 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 mobile homes:
(i) No mobile home or readily fabricated dwelling may be placed on a
private or commercial site unless it is
elevated to the fullest extent practicable up to the base flood level and
adequately anchored.
(ii) No mobile home or readily fabricated dwelling may be placed if such
placement 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 standard. Such
standards may require elevation to the
base flood level in the absence of a
variance.
(iii) Mobile homes 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 mobile homes for temporary housing in
floodplains into existing flood warning
and 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 mobile home; and
(C) Give special consideration to the
unique hazard potential in flash flood
and rapid-rise areas.
(5) FEMA shall comply with Step 2
Early Public Notice (§ 9.8(c)) and Step 7

[45 FR 59526, Sept. 9, 1980, as amended at 48
FR 29318, June 24, 1983]

§ 9.13 Particular types of temporary
housing.
(a) The purpose of this section is to
set forth the procedures whereby the
Agency will provide certain specified
types of temporary housing.
(b) Prior to providing the types of
temporary housing enumerated in
paragraph (c) of this section, the Agency shall comply with the provisions of
this section. For all temporary housing
not enumerated below, the full 8-step
process (see § 9.6) applies.
(c) The following temporary housing
actions are subject to the provisions of
this section and not the full 8-step
process:
(1) [Reserved]
(2) Placing a mobile home or readily
fabricated dwelling on a private or
commercial site, but not a group site.
(d) The actions set out in paragraph
(c) 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 a floodplain or wetland.
(2) No mobile home or readily fabricated dwelling may be placed on a
private or commercial site in a
floodway or coastal high hazard area.
(3) An individual or family shall not
be housed in a 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):

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§ 9.14

44 CFR Ch. I (10–1–14 Edition)
alternative actions (conveyance for an
alternative use that is more consistent
with the floodplain management and
wetland protection policies set out in
§ 9.2 than the one proposed, e.g., open
space use for park or recreational purposes rather than high intensity uses),
and on the ‘‘no action’’ option (retain
the property);
(4) Identify the potential impacts and
support associated with the disposal of
the property in accordance with § 9.10;
(5) Identify the steps necessary to
minimize, restore, preserve and enhance in accordance with § 9.11. For disposals, this analysis shall address all
four of these components of mitigation
where unimproved property is involved,
but shall focus on minimization
through floodproofing and restoration
of natural values where improved property is involved;
(6) Reevaluate the proposal to dispose
of the property in light of its exposure
to the flood hazard and its natural values-related impacts, in accordance
with § 9.9. This analysis shall focus on
whether it is practicable in light of the
findings from §§ 9.10 and 9.11 to dispose
of the property, or whether it must be
retained. If it is determined that it is
practicable to dispose of the property,
this analysis shall identify the practicable alternative that best achieves
all of the components of the Orders’
mitigation responsibility;
(7) To the extent that it would decrease the flood hazard to lives and
property, the Agency shall, wherever
practicable, dispose of the properties
according to the following priorities:
(i) Properties located outside the
floodplain;
(ii) Properties located in the flood
fringe; and
(iii) Properties located in a floodway,
regulatory floodway or coastal high
hazard area.
(8) The Agency shall prepare and provide the public with a finding and public explanation in accordance with
§ 9.12.
(9) The Agency shall ensure that the
applicable mitigation requirements are
fully implemented in accordance with
§ 9.11.
(c) At the time of disposal, for all disposed property, the Agency shall reference in the conveyance uses that are

Final Public Notice (§ 9.12). In providing these notices, the emergency nature of temporary housing shall be
taken into account.
(e) FEMA shall not sell or otherwise
dispose of mobile homes or other readily fabricated dwellings which would be
located in floodways or coastal high
hazard areas. FEMA shall not sell or
otherwise dispose of mobile homes or
other readily fabricated dwellings
which would be located in floodplains
or wetlands unless there is full compliance with the 8-step process. Given the
vulnerability of mobile homes to flooding, a rejection of a non-floodplain location alternative and of the no-action
alternative shall be based on (1) a compelling need of the family or individual
to buy a mobile home for permanent
housing, and (2) a compelling requirement to locate the unit in a floodplain.
Further, FEMA shall not sell or otherwise dispose of mobile homes or other
readily fabricated dwellings in a floodplain unless they are elevated at least
to the level of the 100-year flood. The
Regional Administrator shall notify
the Assistant Administrator for Mitigation of each instance where a floodplain location has been found to be the
only practicable alternative for a mobile home sale.
[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]

§ 9.14 Disposal of Agency property.
(a) The purpose of this section is to
set forth the procedures whereby the
Agency shall dispose of property.
(b) Prior to its disposal by sale, lease
or other means of disposal, property
proposed to be disposed of by the Agency shall be reviewed according to the
decision-making process set out in § 9.6
of this part, as follows:
(1) The property shall be evaluated in
accordance with the provisions of § 9.7
to determine if it affects or is affected
by a floodplain or wetland;
(2) The public shall be notified of the
proposal and involved in the decisionmaking process in accordance with the
provisions of § 9.8;
(3) Practicable alternatives to disposal shall be evaluated in accordance
with the provisions of § 9.9. For disposals, this evaluation shall focus on

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Federal Emergency Management Agency, DHS
restricted under existing Federal,
State and local floodplain management
and wetland protection standards relating to flood hazards and floodplain
and wetland values.

§ 9.17

cation due to failure of applicants to
recognize and reflect the provisions of
the Orders and this regulation.
§ 9.17

Instructions to applicants.

(a) Purpose. In accordance with Executive Orders 11988 and 11990, the Federal executive agencies must respond
to a number of floodplain management
and wetland protection responsibilities
before carrying out any of their activities, including the provision of Federal
financial and technical assistance. The
purpose of this section is to put applicants for Agency assistance on notice
concerning both the criteria that it is
required to follow under the Orders,
and applicants’ responsibilities under
this regulation.
(b) Responsibilities of Applicants. Based
upon the guidance provided by the
Agency under § 9.16, that guidance included in the U.S. Water Resources
Council’s Guidance for Implementing
E.O. 11988, and based upon the provisions of the Orders and this regulation,
applicants for Agency assistance shall
recognize and reflect in their application:
(1) The Agency’s policy on floodplain
management and wetlands protection
as set out in § 9.2;
(2) The decision-making process to be
used by the Agency in making the determination of whether to provide the
requested assistance as set out in § 9.6;
(3) The nature of the Orders’ practicability analysis as set out in § 9.9;
(4) The nature of the Orders’ mitigation responsibilities as set out in § 9.11;
(5) The nature of the Orders’ public
and involvement process as set out in
§§ 9.8 and 9.12; and
(6) The supplemental requirements
for application for the lease or other
disposal of Agency-owned properties, as
set out in § 9.13.
(c) Provision of supporting information.
Applicants for Agency assistance may
be called upon to provide supporting
information relative to the various responsibilities set out in paragraph (b)
of this section as a prerequisite to the
approval of their applications.
(d) Approval of applications. Applications for Agency assistance shall be reviewed for the recognition and reflection of the provisions of this regulation

§ 9.15 Planning programs affecting
land use.
The Agency shall take floodplain
management into account when formulating or evaluating any water and
land use plans. No plan may be approved unless it:
(a) Reflects consideration of flood
hazards and floodplain management
and wetlands protection; and
(b) Prescribes planning procedures to
implement the policies and requirements of the Orders and this regulation.
§ 9.16 Guidance for applicants.
(a) The Agency shall encourage and
provide adequate guidance to applicants for agency assistance to evaluate
the effects of their plans and proposals
in or affecting floodplains and wetlands.
(b) This shall be accomplished primarily through amendment of all
Agency instructions to applicants, e.g.,
program handbooks, contracts, application and agreement forms, etc., and
also through contact made by agency
staff during the normal course of their
activities, to fully inform prospective
applicants of:
(1) The Agency’s policy on floodplain
management and wetlands protection
as set out in § 9.2;
(2) The decision-making process to be
used by the Agency in making the determination of whether to provide the
required assistance as set out in § 9.6;
(3) The nature of the Orders’ practicability analysis as set out in § 9.9;
(4) The nature of the Orders’ mitigation responsibilities as set out in § 9.11;
(5) The nature of the Orders’ public
notice and involvement process as set
out in §§ 9.8 and 9.12; and
(6) The supplemental requirements
applicable to applications for the lease
or other disposal of Agency owned
properties set out in § 9.14.
(c) Guidance to applicants shall be
provided where possible, prior to the
time of application in order to minimize potential delays in process appli-

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§ 9.18

44 CFR Ch. I (10–1–14 Edition)

in addition to the Agency’s existing approval criteria.

decision of a Regional Administrator
relating to disaster assistance is appealed, the Assistant Administrator for
Mitigation may make determinations
under these regulations on behalf of
the Agency.
(2) Prepare and submit to the Office
of Chief Counsel reports to the Office of
Management and Budget in accordance
with section 2(b) of E.O. 11988 and section 3 of E.O. 11990. If a proposed action
is to be located in a floodplain or wetland, any requests to the Office of Management and Budget for new authorizations or appropriations shall be accompanied by a report indicating whether
the proposed action is in accord with
the Orders and these regulations.

§ 9.18 Responsibilities.
(a) Regional Administrators’ responsibilities.
Regional
Administrators
shall, for all actions falling within
their respective jurisdictions:
(1) Implement the requirements of
the Orders and this regulation. Anywhere in §§ 9.2, 9.6 through 9.13, and 9.15
where a direction is given to the Agency, it is the responsibility of the Regional Administrator.
(2) Consult with the Chief Counsel regarding any question of interpretation
concerning this regulation or the Orders.
(b) The Heads of the Offices, Directorates and Administrations of FEMA
shall:
(1) Implement the requirements of
the Orders and this regulation. When a

[45 FR 59526, Sept. 9, 1980, as amended at 49
FR 33879, Aug. 27, 1984; 74 FR 15336, Apr. 3,
2009]

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Federal Emergency Management Agency, DHS

§ 10.1

APPENDIX A TO PART 9—DECISION-MAKING PROCESS FOR E.O. 11988

10.13
10.14

PART 10—ENVIRONMENTAL
CONSIDERATIONS

AUTHORITY: 42 U.S.C. 4321 et seq.; E.O. 11514
of March 7, 1970, 35 FR 4247, as amended by E.
O. 11991 of March 24, 1977, 3 CFR, 1977 Comp.,
p. 123; Reorganization Plan No. 3 of 1978, 43
FR 41943, 3 CFR, 1978 Comp., p. 329; E.O. 12127
of March 31, 1979, 44 FR 19367, 3 CFR, 1979
Comp., p. 376; E.O. 12148 of July 20, 1979, 44
FR 43239, 3 CFR, 1979 Comp., p. 412, as amended.

Subpart A—General
Sec.
10.1
10.2
10.3
10.4

Emergencies.
Flood plains and wetlands.

Background and purpose.
Applicability and scope.
Definitions.
Policy.

Subpart B—Agency Implementing
Procedures

SOURCE: 45 FR 41142, June 18, 1980, unless
otherwise noted.

10.5 Responsibilities.
10.6 Making or amending policy.
10.7 Planning.
10.8 Determination of requirement for environmental review.
10.9 Preparation of environmental assessments.
10.10 Preparation of environmental impact
statements.
10.11 Environmental information.
10.12 Pre-implementation actions.

Subpart A—General
§ 10.1

Background and purpose.

(a) This part implements the Council
on Environmental Quality (CEQ) regulations (National Environmental Policy Act Regulations, 43 FR 55978 (1978))
and provides policy and procedures to

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EC02FE91.074

87