[Code of Federal Regulations]

[Title 44, Volume 1]

[Revised as of October 1, 2005]

From the U.S. Government Printing Office via GPO Access

[CITE: 44CFR9.9]



[Page 91-93]

 

              TITLE 44--EMERGENCY MANAGEMENT AND ASSISTANCE

 

 CHAPTER I--FEDERAL EMERGENCY MANAGEMENT AGENCY, DEPARTMENT OF HOMELAND 

                                SECURITY

 

PART 9_FLOODPLAIN MANAGEMENT AND PROTECTION OF WETLANDS--Table of Contents

 

Sec. 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 Sec. 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



[[Page 92]]



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 Sec. 

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.);

    (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 (Sec. 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.



[[Page 93]]



    (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, Sec. 9.9(e)(6) 

was temporarily suspended until further notice.