[Code of Federal Regulations]

[Title 44, Volume 1]

[Revised as of October 1, 2006]

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

[CITE: 44CFR60.6]



[Page 260-262]

 

              TITLE 44--EMERGENCY MANAGEMENT AND ASSISTANCE

 

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

                                SECURITY

 

PART 60_CRITERIA FOR LAND MANAGEMENT AND USE--Table of Contents

 

      Subpart A_Requirements for Flood Plain Management Regulations

 

Sec.  60.6  Variances and exceptions.



    (a) The Administrator does not set forth absolute criteria for 

granting variances from the criteria set forth in Sec.  Sec.  60.3, 60.4, 

and 60.5. The issuance of a variance is for flood plain management 

purposes only. Insurance premium rates are determined by statute 

according to actuarial risk and will not be modified by the granting of 

a variance. The community, after examining the applicant's hardships, 

shall approve or disapprove a request. While the granting of variances 

generally is limited to a lot size less than one-half acre (as set forth 

in paragraph (a)(2) of this section), deviations from that limitation 

may occur. However, as the lot size increases beyond one-half acre, the 

technical justification required for issuing a variance increases. The 

Administrator may review a community's findings justifying the granting 

of variances, and if that review indicates a pattern inconsistent with 

the objectives of sound flood plain management, the Administrator may 

take appropriate action under Sec.  59.24(b) of this subchapter. 

Variances may be issued for the repair or rehabilitation of historic 

structures upon a determination that the proposed repair or 

rehabilitation will not preclude the structure's continued designation 

as a historic structure and the variance is the minimum necessary to 

preserve the historic character and design of the structure. Procedures 

for the granting of variances by a community are as follows:

    (1) Variances shall not be issued by a community within any 

designated regulatory floodway if any increase in flood levels during 

the base flood discharge would result;

    (2) Variances may be issued by a community for new construction and 

substantial improvements to be erected on a lot of one-half acre or less 

in size contiguous to and surrounded by lots with existing structures 

constructed below the base flood level, in conformance with the 

procedures of paragraphs (a) (3), (4), (5) and (6) of this section;

    (3) Variances shall only be issued by a community upon (i) a showing 

of good and sufficient cause, (ii) a determination that failure to grant 

the variance would result in exceptional hardship to the applicant, and 

(iii) a determination that the granting of a variance will not result in 

increased flood heights, additional threats to public safety, 

extraordinary public expense, create nuisances, cause fraud on or 

victimization of the public, or conflict with existing local laws or 

ordinances;

    (4) Variances shall only be issued upon a determination that the 

variance is the minimum necessary, considering the flood hazard, to 

afford relief;

    (5) A community shall notify the applicant in writing over the 

signature of a community official that (i) the issuance of a variance to 

construct a structure below the base flood level will result in 

increased premium rates for flood insurance up to amounts as high as $25 

for $100 of insurance coverage and (ii) such construction below the base 

flood level increases risks to life and property. Such notification 

shall be maintained with a record of all variance actions as required in 

paragraph (a)(6) of this section; and

    (6) A community shall (i) maintain a record of all variance actions, 

including justification for their issuance, and (ii) report such 

variances issued in its annual or biennial report submitted to the 

Administrator.

    (7) Variances may be issued by a community for new construction and 

substantial improvements and for other development necessary for the 

conduct of a functionally dependent use provided that (i) the criteria 

of paragraphs (a)(1) through (a)(4) of this section are met, and (ii) 

the structure or other development is protected by methods that minimize 

flood damages during the base flood and create no additional threats to 

public safety.



[[Page 261]]



    (b)(1) The requirement that each flood-prone, mudslide (i.e., 

mudflow)-prone, and flood-related erosion prone community must adopt and 

submit adequate flood plain management regulations as a condition of 

initial and continued flood insurance eligibility is statutory and 

cannot be waived, and such regulations shall be adopted by a community 

within the time periods specified in Sec.  Sec.  60.3, 60.4 or Sec.  

60.5. However, certain exceptions from the standards contained in this 

subpart may be permitted where the Administrator recognizes that, 

because of extraordinary circumstances, local conditions may render the 

application of certain standards the cause for severe hardship and gross 

inequity for a particular community. Consequently, a community proposing 

the adoption of flood plain management regulations which vary from the 

standards set forth in Sec.  Sec.  60.3, 60.4, or Sec.  60.5, shall 

explain in writing to the Administrator the nature and extent of and the 

reasons for the exception request and shall include sufficient 

supporting economic, environmental, topographic, hydrologic, and other 

scientific and technical data, and data with respect to the impact on 

public safety and the environment.

    (2) The Administrator shall prepare a Special Environmental 

Clearance to determine whether the proposal for an exception under 

paragraph (b)(1) of this section will have significant impact on the 

human environment. The decision whether an Environmental Impact 

Statement or other environmental document will be prepared, will be made 

in accordance with the procedures set out in 44 CFR part 10. Ninety or 

more days may be required for an environmental quality clearance if the 

proposed exception will have significant impact on the human environment 

thereby requiring an EIS.

    (c) A community may propose flood plain management measures which 

adopt standards for floodproofed residential basements below the base 

flood level in zones A1-30, AH, AO, and AE which are not subject to 

tidal flooding. Notwithstanding the requirements of paragraph (b) of 

this section the Administrator may approve the proposal provided that:

    (1) The community has demonstrated that areas of special flood 

hazard in which basements will be permitted are subject to shallow and 

low velocity flooding and that there is adequate flood warning time to 

ensure that all residents are notified of impending floods. For the 

purposes of this paragraph flood characteristics must include:

    (i) Flood depths that are five feet or less for developable lots 

that are contiguous to land above the base flood level and three feet or 

less for other lots;

    (ii) Flood velocities that are five feet per second or less; and

    (iii) Flood warning times that are 12 hours or greater. Flood 

warning times of two hours or greater may be approved if the community 

demonstrates that it has a flood warning system and emergency plan in 

operation that is adequate to ensure safe evacuation of flood plain 

residents.

    (2) The community has adopted flood plain management measures that 

require that new construction and substantial improvements of 

residential structures with basements in zones A1-30, AH, AO, and AE 

shall:

    (i) Be designed and built so that any basement area, together with 

attendant utilities and sanitary facilities below the floodproofed 

design level, is watertight with walls that are impermeable to the 

passage of water without human intervention. Basement walls shall be 

built with the capacity to resist hydrostatic and hydrodynamic loads and 

the effects of buoyancy resulting from flooding to the floodproofed 

design level, and shall be designed so that minimal damage will occur 

from floods that exceed that level. The floodproofed design level shall 

be an elevation one foot above the level of the base flood where the 

difference between the base flood and the 500-year flood is three feet 

or less and two feet above the level of the base flood where the 

difference is greater than three feet.

    (ii) Have the top of the floor of any basement area no lower than 

five feet below the elevation of the base flood;

    (iii) Have the area surrounding the structure on all sides filled to 

or above the elevation of the base flood. Fill



[[Page 262]]



must be compacted with slopes protected by vegetative cover;

    (iv) Have a registered professional engineer or architect develop or 

review the building's structural design, specifications, and plans, 

including consideration of the depth, velocity, and duration of flooding 

and type and permeability of soils at the building site, and certify 

that the basement design and methods of construction proposed are in 

accordance with accepted standards of practice for meeting the 

provisions of this paragraph;

    (v) Be inspected by the building inspector or other authorized 

representative of the community to verify that the structure is built 

according to its design and those provisions of this section which are 

verifiable.



[41 FR 46975, Oct. 26, 1976. Redesignated at 44 FR 31177, May 31, 1979, 

as amended at 48 FR 44543 and 44552, Sept. 29, 1983; 49 FR 4751, Feb. 8, 

1984; 50 FR 36025, Sept. 4, 1985; 51 FR 30308, Aug. 25, 1986; 54 FR 

33550, Aug. 15, 1989]