[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: 44CFR9.5]



[Page 85-88]

 

              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.  9.5  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 progressed beyond critical stages in 

the floodplain management and wetlands protection decision-making 

process, as



[[Page 86]]



set out below in Sec.  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 Directors 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 8-step 

process applies (see Sec.  9.6) (except as indicated at paragraphs (d), 

(f) and (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 (Sec.  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.



[[Page 87]]



    (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 Director shall 

apply steps 1, 2, 4, 5 and 8 of the decision-making process (Sec.  Sec.  

9.7, 9.8, 9.10 and 9.11, see Sec.  9.6). Steps 3 and 6 (Sec.  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 Director may also 

require certain other portions of the decision-making process to be 

carried out for individual actions as is deemed necessary. For any 

action which is excluded from the actions listed below. (except as 

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 Sec.  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

    (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 (Sec.  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 Sec.  9.5(c), or has no practicable alternative sites and shall be 

treated as those actions listed in Sec.  9.5(d), or has no practicable 

alternative actions or sites and shall be treated as those actions 

listed in Sec.  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 SLPS, 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 

SLPS, 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 SLPS, 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 SLPS, does take site specific actions 

which would require individual application of the 8-step process are 

property acquisition under section 1362 of the National Flood Insurance 

Act of 1968, as amended, and the issuance of an exception to a community 

under 44 CFR 60.6(b). (See also Sec.  9.9(e)(6) and Sec.  9.11(e).)



[[Page 88]]



    (2) The provisions set forth in this regulation are not applicable 

to the actions enumerated below except that the Federal Insurance 

Administrator or the Associate Director, SLPS, 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 Director shall apply 

steps 1, 4, 5 and 8 of the decision-making process (Sec.  Sec.  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 8-step process applies (See Sec.  9.6). The Regional Director may 

also require certain other portions of the decision-making 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 damage from flooding due to a major disaster or emergency.



[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]