PART 9—FLOODPLAIN MANAGEMENT AND PROTECTION OF WETLANDS Authority: 6 U.S.C. 101 et seq.; et seq.; et seq.; Source: 45 FR 59526, Sept. 9, 1980, unless otherwise noted. § 9.1 Purpose. This part sets forth the policy, procedure, and responsibilities to implement and enforce relevant sections of the National Flood Insurance Act of 1968, as amended, and the Flood Disaster Protection Act of 1973, as amended, 42 U.S.C. 4001 et seq., et seq., [89 FR 57037, July 11, 2024] § 9.2 Policy. (a) FEMA shall take no action unless and until the requirements of this regulation are complied with. (b) The Agency will provide leadership in floodplain management and the protection of wetlands, informed by the best available and actionable science, to bolster the resilience of communities and Federal assets against the impacts of flooding, which are anticipated to increase over time due to the effects of changing conditions which adversely affect the environment, economic prosperity, public health and safety, and national security. (c) The Agency shall integrate the goals of the Orders to the greatest possible degree into its procedures for implementing the National Environmental Policy Act (42 U.S.C. 4321 et seq. (d) The Agency shall: (1) Minimize the impact of floods on human health, safety, and welfare; (2) Avoid long- and short-term adverse impacts associated with the occupancy and modification of floodplains and the destruction and modification of wetlands; (3) Avoid direct and indirect support of floodplain development and new construction in wetlands wherever there is a practicable alternative; (4) Reduce the risk of flood loss; (5) Promote the use of nonstructural flood protection methods to reduce the risk of flood loss; (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; (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. [45 FR 59526, Sept. 9, 1980, as amended at 89 FR 57038, July 11, 2024] § 9.3 Severability. Any provision of this part held to be invalid or unenforceable as applied to any action should be construed so as to continue to give the maximum effect to the provision permitted by law, unless such holding is that the provision of this part is invalid and unenforceable in all circumstances, in which event the provision should be severable from the remainder of this subpart and shall not affect the remainder thereof. [89 FR 57038, July 11, 2024] § 9.4 Definitions. The following definitions shall apply throughout this regulation. 0.2 percent annual chance flood elevation 0.2 percent annual chance floodplain 1 percent annual chance flood elevation base flood elevation 1 percent annual chance floodplain Action (1) Acquiring, managing, and disposing of Federal lands and facilities; (2) Providing federally undertaken, financed, or assisted construction and improvements; and (3) Conducting Federal activities and programs affecting land use, including, but not limited to, water and related land resources, planning, regulating, and licensing activities. Action subject to the Federal Flood Risk Management Standard (FFRMS) Actions affecting or affected by floodplains or wetlands (1) The occupancy or modification of floodplains, and the direct or indirect support of floodplain development, or (2) The destruction and modification of wetlands and the direct or indirect support of new construction in wetlands. Administrator Agency Agency Assistance Base flood elevation Coastal high hazard area Critical action (1) Such as those which produce, use or store highly volatile, flammable, explosive, toxic or water-reactive materials; (2) 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; (3) 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 (4) Such as generating plants, and other principal points of utility lines. Direct Impacts Emergency actions Enhance Facility Federal Flood Risk Management Standard (FFRMS) Federal Flood Risk Management Standard (FFRMS) floodplain Federally funded project Action subject to the Federal Flood Risk Management Standard FEMA FEMA Resilience Flood flooding 0.2 percent annual chance flood 1 percent annual chance flood Floodplain See 0.2 percent annual chance floodplain, 1 percent annual chance floodplain, Federal Flood Risk Management Standard floodplain Floodproofing Floodway Functionally dependent use Indirect Impacts Minimize Mitigation National security (1) A condition that is provided by either: (i) A military or defense advantage over any foreign nation or group of nations; (ii) A favorable foreign relations position; or (iii) A defense posture capable of successfully resisting hostile or destructive action from within or without, overt or covert. (2) National security encompasses both national defense and foreign relations of the United States. Natural and beneficial values of floodplains and wetlands (1) Water resource values (storing and conveying floodwaters, maintaining water quality, and groundwater recharge); (2) Living resource values (providing habitats and enhancing biodiversity for fish, wildlife, and plant resources); (3) Cultural resource values (providing open space, natural beauty, recreation, scientific study, historic and archaeological resources, and education; and (4) Cultivated resource values (creating rich soils for agriculture, aquaculture, and forestry). Natural features e.g., Nature-based approaches New construction Orders Practicable Preserve Regional Administrator Regulatory floodway Restore Structure Substantial improvement Support of floodplain and wetland development Wetlands [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; 89 FR 57038, July 11, 2024; 89 FR 82182, Oct. 10, 2024] § 9.5 Scope. (a) Applicability. (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) The amendments to this part made on September 9, 2024 apply to new actions for which assistance is made available pursuant to declarations under the Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988 on or after September 9, 2024 and new actions for which assistance is made available pursuant to notices of funding opportunities published on or after September 9, 2024. For ongoing actions for which assistance was made available prior to that date, legacy program regulations (available at http://www.fema.gov (b) Limited exemption of ongoing actions involving wetlands located outside the floodplains. (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. (1) Assistance provided for emergency work essential to save lives and protect property and public health and safety performed pursuant to sections 403 and 502; (2) Emergency Support Teams (section 303); (3) Emergency Communications (section 418); (4) Emergency Public Transportation (section 419); (5) Fire Management Assistance (section 420), except for hazard mitigation assistance under sections 404 and 420(d); (6) Community Disaster Loans (section 417), 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; (7) The following Federal Assistance to Individuals and Households Program (section 408) categories of assistance: (i) Financial assistance for temporary housing (section 408(c)(1)(A)); (ii) Lease and repair of rental units for temporary housing (section 408(c)(1)(B)(ii)), except that Step 1 (§ 9.7) shall be carried out; (iii) Repairs (section 408(c)(2)); (iv) Replacement (section 408(c)(3)); and (v) Financial assistance to address other needs (section 408(e)). (8) Debris clearance and removal (sections 403 and 502), except those grants involving non-emergency disposal of debris within a floodplain or wetland (section 407); (9) Actions under sections 406 and 407 of less than $18,000. Such $18,000 amount will be adjusted annually to reflect changes in the Consumer Price Index for All Urban Consumers published by the Department of Labor; (10) 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) Abbreviated decision-making process applying steps 1, 4, 5, and 8. (1) Actions in a floodway or coastal high hazard area; or (2) New construction, substantial improvement, or repairs to address substantial damage of structures or facilities; or (3) Facilities or structures which have previously sustained damage from flooding due to a major disaster or emergency or on which a flood insurance claim has been paid; or (4) Critical actions. (e) Abbreviated decision-making process applying steps 1, 2, 4, 5, and 8. see (1) Replacement of building contents, materials, and equipment (section 406). (2) Repairs under section 406 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 percent of the estimated reconstruction cost of the entire facility or structure or is more than $364,000. Such $364,000 amount will be adjusted annually to reflect changes in the Consumer Price Index for All Urban Consumers published by the Department of Labor; or (ii) The action is located in a floodway or coastal high hazard area; or (iii) Facilities or structures which have 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. (f) Other categories of actions. Federal Register (g) The National Flood Insurance Program (NFIP). (2) The provisions set forth in this part are not applicable to the actions enumerated below except that FEMA Resilience 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 NFIP; (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. [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; 89 FR 57040, July 11, 2024] § 9.6 Decision-making process. (a) Purpose. (b) Decision-making process. (1) Step 1. (2) Step 2. (3) Step 3. (4) Step 4. (5) Step 5. (6) Step 6. see (7) Step 7. (8) Step 8. [89 FR 57041, July 11, 2024] § 9.7 Determination of proposed action's location. (a) Purpose. (b) Information needed. (i) Avoid Federal action in floodplain and wetland locations unless they are the only practicable alternatives; and (ii) Minimize harm to and within floodplains and wetlands. (2) In all cases, FEMA shall determine whether the proposed action is located in a floodplain or wetland. Information about the floodplain as established by paragraph (c) of this section and the location of floodways and coastal high hazard areas may also be needed to comply with this part, especially § 9.11. (3) The following additional current and future flooding characteristics may be identified by the Regional Administrator as applicable: (i) Velocity of floodwater; (ii) Rate of rise of floodwater; (iii) Duration of flooding; (iv) Available warning and evacuation time and routes; (v) Special problems: (A) Levees; (B) Erosion; (C) Subsidence; (D) Sink holes; (E) Ice jams; (F) Debris load; (G) Pollutants; (H) Wave heights; (I) Groundwater flooding; (J) Mudflow. (vi) Any other applicable flooding characteristics. (c) Floodplain determination. (1) FEMA shall determine whether the action is an action subject to the FFRMS as defined in § 9.4. (i) If the action is an action subject to the FFRMS, FEMA shall establish the FFRMS floodplain area and associated flood elevation by using the process specified in (c)(3) of this section and one of the following approaches: (A) Climate-Informed Science Approach (CISA): Using a climate-informed science approach that uses the best-available, actionable hydrologic and hydraulic data and methods that integrate current and future changes in flooding based on climate science. This approach will also include an emphasis on whether the action is a critical action as one of the factors to be considered when conducting the analysis; (B) Freeboard Value Approach (FVA): Using the freeboard value, reached by adding an additional 2 feet to the base flood elevation for non-critical actions and by adding an additional 3 feet to the base flood elevation for critical actions; (C) 0.2-Percent-Annual-Chance Flood Approach (0.2PFA): The 0.2 percent annual chance flood; or (D) Any other method identified in an update to the FFRMS. (ii) FEMA may select among and prioritize the approaches in this paragraph (c)(1) by policy. (iii) FEMA may provide an exception to using the FFRMS floodplain and corresponding flood elevation for an action subject to the FFRMS and instead use the 1 percent annual chance (base) floodplain for non-critical actions or the 0.2 percent annual chance floodplain for critical actions where the action is in the interest of national security, where the action is an emergency action, or where the action is a mission-critical requirement related to a national security interest or an emergency action. (2) If the action is not an action subject to the FFRMS as defined in § 9.4, FEMA shall use, at a minimum: (i) The 1 percent annual chance (base) floodplain and flood elevation for non-critical actions; and (ii) The 0.2 percent annual chance floodplain and flood elevation for critical actions. (3) FEMA shall establish the floodplain and corresponding elevation using the best available information. The floodplain and corresponding elevation determined using the best available information must be at least as restrictive as FEMA's regulatory determinations under the NFIP where such determinations are available. In obtaining the best available information, FEMA may consider other FEMA information as well as other available information, such as information from: (i) Department of Agriculture: Natural Resources Conservation Service, U.S. Forest Service; (ii) Department of Defense: U.S. Army Corps of Engineers; (iii) Department of Commerce: National Oceanic and Atmospheric Administration; (iv) Department of the Interior: Bureau of Land Management, Bureau of Reclamation, National Park Service, U.S. Fish and Wildlife Service, United States Geological Survey; (v) Tennessee Valley Authority; (vi) Department of Transportation; (vii) Environmental Protection Agency; (viii) General Services Administration; (ix) Agencies of State, Regional, and Indian Tribal governments; or (x) Local sources such as Floodplain Administrators, Regional Flood Control Districts, or Transportation Departments. (4) If the sources listed in paragraph (c)(3) of this section do not have or know of the information necessary to comply with the requirements in this part, the Regional Administrator may seek the services of a professional registered engineer. (5) If a decision involves an area or location within extensive Federal or state holdings or a headwater area and FEMA's regulatory determinations under the National Flood Insurance Program are not available, the Regional Administrator shall seek information from the land administering agency before information and/or assistance is sought from the sources listed in paragraph (c)(3) of this section. (d) Wetland determination. (1) The Agency shall consult with the U.S. Fish and Wildlife Service (FWS) for information concerning the location, scale and type of wetlands within the area which could be affected by the proposed action. (2) If the FWS does not have adequate information upon which to base the determination, the Agency shall consult wetland inventories maintained by the Army Corps of Engineers, the Environmental Protection Agency, various states, communities and others. (3) If the identified sources do not have adequate information upon which to base the determination, the Agency shall carry out an on-site analysis performed by a representative of the FWS or other qualified individual for wetlands characteristics based on the definition of a wetland in § 9.4. (4) If an action constitutes new construction and is in a wetland but not in a floodplain, the provisions of this part shall apply. If the action is not in a wetland, the Regional Administrator shall determine if the action has the potential to result in indirect impacts on wetlands. If so, all potential adverse impacts shall be minimized. For actions which are in a wetland and the floodplain, completion of the decision-making process is required. ( See [45 FR 59526, Sept. 9, 1980, as amended at 47 FR 13149, Mar. 29, 1982; 49 FR 33879, Aug. 27, 1984; 50 FR 40006, Oct. 1, 1985; 51 FR 34605, Sept. 30, 1986; 89 FR 57042, July 11, 2024] § 9.8 Public notice requirements. (a) Purpose. (b) General. (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. (1) For an action for which an environmental impact statement is being prepared, the Notice of Intent to File an EIS constitutes the early public notice if it includes the information required under paragraph (c)(5) of this section. (2) For each action having national significance for which notice is being provided, the Agency at a minimum shall provide notice by publication in the Federal Register (3) The Agency shall determine whether it has provided appropriate notices, adequate comment periods, and whether to issue cumulative notices (paragraphs (c)(4), (6), and (7) of this section) based on factors which include, but are not limited to: (i) Scale of the action; (ii) Potential for controversy; (iii) Degree of public need; (iv) Number of affected agencies and individuals; and (v) Anticipated potential impact of the action. (4) For each action having primarily local importance for which notice is being provided, notice shall be made in accordance with the criteria under paragraph (c)(3) of this section, and shall include, as appropriate: (i) Notice through the internet or another comparable method. (ii) Notice to Indian tribes when effects may occur on reservations. (iii) Information required in the affected State's public notice procedures for comparable actions. (iv) Publication in local newspapers. (v) Notice through other local media including newsletters. (vi) Notice to potential interested community organizations. (vii) Direct mailing to owners and occupants of nearby or affected property. (viii) Posting of notice on and off site in the area where the action is to be located. (ix) Public hearing. (5) The notice shall: (i) Describe the action, its purposes, and a statement of the intent to carry out an action affecting or affected by a floodplain or wetland; (ii) Based on the factors in paragraph (c)(3) of this section, include a map of the area and other identification of the floodplain and/or wetland areas which is of adequate scale and detail; alternatively, FEMA may state that such map is available for public inspection, including the location at which such map may be inspected and a telephone number to call for information or may provide a link to access the map online; (iii) Based on the factors in paragraph (c)(3) of this section, describe the type, extent, and degree of hazard involved and the floodplain or wetland values present; and (iv) Identify the responsible official or organization for implementing the proposed action, and from whom further information can be obtained. (6) The Agency shall provide for an adequate comment period. (7) In a post-disaster situation in particular, the requirement for early public notice may be met in a cumulative manner based on the factors set out in paragraph (c)(3) of this section. Several actions may be addressed in one notice or series of notices. For some actions involving limited public interest a single notice in a local newspaper or letter to interested parties may suffice. (d) Continuing public notice. [45 FR 59526, Sept. 9, 1980, as amended at 48 FR 29318, June 24, 1983; 89 FR 57042, July 11, 2024] § 9.9 Analysis and reevaluation of practicable alternatives. (a) Purpose. (2) Step 3 is a preliminary determination as to whether the floodplain is the only practicable location for the action. It is a preliminary determination because it comes early in the decision-making process when the Agency has a limited amount of information. If it is clear that there is a practicable alternative, or the floodplain or wetland is itself not a practicable location, FEMA shall then act on that basis. Provided that the location outside the floodplain or wetland does not indirectly impact floodplains or wetlands or support development therein (see § 9.10), the remaining analysis set out by this regulation is not required. If such location does indirectly impact floodplains or wetlands or support development therein, the remaining analysis set out by this regulation is required. If the preliminary determination is to act in the floodplain, FEMA shall gather the additional information required under Steps 4 and 5 and then reevaluate all the data to determine if the floodplain or wetland is the only practicable alternative. (b) Analysis of practicable alternatives. (1) Alternative sites outside the floodplain or wetland; (2) Alternative actions which serve essentially the same purpose as the proposed action, but which have less potential to affect or be affected by the floodplain or wetlands. In developing the alternative actions, the Agency shall use, where possible, natural systems, ecosystem processes, and nature-based approaches; and (3) No action. (c) The Agency shall analyze the following factors in determining the practicability of the alternatives set out in paragraph (b) of this section: (1) Natural environment (including, but not limited to topography, habitat, hazards, when applicable); (2) Social concerns (including, but not limited to aesthetics, historical and cultural values, land patterns, when applicable); (3) Economic aspects (including, but not limited to costs of space, technology, construction, services, relocation, when applicable); (4) Legal constraints (including, but not limited to deeds and leases, when applicable); and (5) Agency authorities. (d) Action following the analysis of practicable alternatives. (2) If no practicable alternative exists outside the floodplain or wetland, in order to carry out the action the floodplain or wetland must itself be a practicable location in light of the review required in this section. (e) Reevaluation of alternatives. (1) Determine whether: (i) The action is still practicable at a floodplain or wetland site, considering the flood risk and the ensuing disruption of natural values; (ii) The floodplain or wetland site is the only practicable alternative; (iii) The scope of the action can be limited to increase the practicability of previously rejected non-floodplain or wetland sites and alternative actions; and (iv) Harm to or within the floodplain can be minimized using all practicable means. (2) Take no action in a floodplain unless the importance of the floodplain site clearly outweighs the requirements to: (i) Avoid direct or indirect support of floodplain development; (ii) Reduce the risk of flood loss; (iii) Minimize the impact of floods on human safety, health and welfare; and (iv) Restore and preserve floodplain values. (3) Take no action in a wetland unless the importance of the wetland site clearly outweighs the requirements to: (i) Avoid the destruction or modification of the wetlands; (ii) Avoid direct or indirect support of new construction in wetlands; (iii) Minimize the destruction, loss or degradation of wetlands; and (iv) Preserve and enhance the natural and beneficial values of wetlands. (4) In carrying out this balancing process, give the factors in paragraphs (e)(2) and (3) of this section great weight. (5) Choose the “no action” alternative where there are no practicable alternative actions or sites and where the floodplain or wetland is not itself a practicable alternative. In making the assessment of whether a floodplain or wetland location is itself a practicable alternative, the practicability of the floodplain or wetland location shall be balanced against the practicability of not carrying out the action at all. That is, even if there is no practicable alternative outside of the floodplain or wetland, the floodplain or wetland itself must be a practicable location in order for the action to be carried out there. To be a practicable location, the importance of carrying out the action must clearly outweigh the requirements of the Orders listed in paragraphs (e)(2) and (e)(3) of this section. Unless the importance of carrying out the action clearly outweighs those requirements, the “no action” alternative shall be selected. [45 FR 59526, Sept. 9, 1980, as amended at 89 FR 57043, July 11, 2024; 89 FR 82182, Oct. 10, 2024] § 9.10 Identify impacts of proposed actions. (a) This section ensures that the effects of proposed Agency actions are identified. (b) The Agency shall identify the potential direct and indirect adverse impacts associated with the occupancy and modification of floodplains and wetlands and the potential direct and indirect support of floodplain and wetland development that could result from the proposed action. Such identification of impacts shall be to the extent necessary to comply with the requirements of this part to avoid floodplain and wetland locations unless they are the only practicable alternatives to minimize harm to and within floodplains and wetlands. (c) This identification shall consider whether the proposed action will result in an increase in the useful life of any structure or facility in question, maintain the investment at risk and exposure of lives to the flood hazard or forego an opportunity to restore the natural and beneficial values served by floodplains or wetlands. (d) In the review of a proposed or alternative action, the Regional Administrator shall consider and evaluate: impacts associated with modification of wetlands and floodplains regardless of its location; additional impacts which may occur when certain types of actions may support subsequent action which have additional impacts of their own; adverse impacts of the proposed actions on lives and property and on natural and beneficial floodplain and wetland values; and the three categories of factors listed below: (1) Flood hazard-related factors. (2) Natural values-related factors. (3) Factors relevant to a proposed action's effects on the survival and quality of wetlands. [45 FR 59526, Sept. 9, 1980, as amended at 89 FR 57043, July 11, 2024] § 9.11 Mitigation. (a) Purpose. (b) General provisions. (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. (1) Potential harm to lives and the investment from flooding based on flood elevations as established by § 9.7(c); (2) Potential adverse impacts the action may have on others; and (3) Potential adverse impact the action may have on floodplain and wetland values. (d) Minimization Standards. (1) There shall be no new construction or substantial improvement in a floodway and no new construction in a coastal high hazard area, except for: (i) A functionally dependent use; or (ii) A structure or facility which facilitates an open space use. (2) For a structure which is a functionally dependent use or which facilitates an open space use, the following applies: Any construction of a new or substantially improved structure in a coastal high hazard area must be elevated on adequately anchored pilings or columns, and securely anchored to such piles or columns so that the lowest portion of the structural members of the lowest floor (excluding the pilings or columns) is elevated to or above the floodplain as established by § 9.7(c). The structure shall be anchored so as to withstand velocity waters and hurricane wave wash. (3) The following applies to elevation of structures: (i) There shall be no new construction or substantial improvement of structures unless the lowest floor of the structures (including basement) is at or above the elevation of the floodplain as established by § 9.7(c). (ii) If the subject structure is nonresidential, instead of elevating the structure, FEMA may approve the design of the structure and its attendant utility and sanitary facilities so that the structure is watertight below the flood elevation with walls substantially impermeable to the passage of water and with structural components having the capability of resisting hydrostatic and hydrodynamic loads and effects of buoyancy. (iii) The provisions of paragraphs (d)(3)(i) and (ii) of this section do not apply to the extent that FEMA Resilience has granted an exception under § 60.6(b) of this chapter, or the community has granted a variance which the Regional Administrator determines is consistent with § 60.6(a) of this chapter. In a community which does not have a FEMA regulatory product in effect, FEMA may approve a variance from the standards of paragraphs (d)(3)(i) and (ii) of this section, after compliance with the standards of § 60.6(a). (4) There shall be no encroachments, including but not limited to fill, new construction, substantial improvements of structures or facilities, or other development within a designated regulatory floodway that would result in any increase in flood elevation within the community during the occurrence of the 1 percent annual chance (base) flood discharge. Until a regulatory floodway is designated, no fill, new construction, substantial improvements, or other development shall be permitted within the 1 percent annual chance (base) floodplain unless it is demonstrated that the cumulative effect of the proposed development, when combined with all other existing and anticipated development, will not increase the water surface elevation of the 1 percent annual chance (base) flood more than the amount designated by the NFIP or the community, whichever is most restrictive. (5) Even if an action is a functionally dependent use or facilitates open space uses (under paragraph (d)(1) or (2) of this section) and does not increase flood heights (under paragraph (d)(4) of this section), such action may only be taken in a floodway or coastal high hazard area if: (i) Such site is the only practicable alternative; and (ii) Harm to and within the floodplain is minimized. (6) In addition to standards (d)(1) through (d)(5) of this section, no action may be taken if it is inconsistent with the criteria of the National Flood Insurance Program (44 CFR part 59 et seq. (7) New construction and substantial improvement of structures shall be elevated on open works (walls, columns, piers, piles, etc.) rather than on fill, in all cases in coastal high hazard areas and elsewhere, where practicable. (8) To minimize the effect of floods on human health, safety and welfare, the Agency shall: (i) Where appropriate, integrate all of its proposed actions in floodplains into existing flood warning and preparedness plans and ensure that available flood warning time is reflected; (ii) Facilitate adequate access and egress to and from the site of the proposed action; and (iii) Give special consideration to the unique hazard potential in flash flood, rapid-rise or tsunami areas. (9) In the replacement of building contents, materials and equipment, the Regional Administrator shall require as appropriate, flood proofing and/or elevation of the building and/or elimination of such future losses by relocation of those building contents, materials, and equipment outside or above the floodplain as established by § 9.7(c). (e) Restore and preserve. (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. [45 FR 59526, Sept. 9, 1980, as amended at 46 FR 51752, Oct. 22, 1981; 48 FR 44543, Sept. 29, 1983; 49 FR 33879, Aug. 27, 1984; 49 FR 35584, Sept. 10, 1984; 50 FR 40006, Oct. 1, 1985; 89 FR 57044, July 11, 2024] § 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. 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)(1) For all other actions, the finding shall be made in a document separate from those described in paragraphs (a), (b), and (c) of this section. Based on an assessment of the following factors, the requirement for final notice may be met in a cumulative manner: (i) Scale of the action; (ii) Potential for controversy; (iii) Degree of public need; (iv) Number of affected agencies and individuals; (v) Its anticipated potential impact; and (vi) Similarity of the actions, i.e., to the extent that they are susceptible of common descriptions and assessments. (2) When a damaged structure or facility is already being repaired by the State or local government at the time of the project application, the requirements of Steps 2 and 7 (§ 9.8 and this section) may be met by a single notice. Such notice shall contain all the information required by both sections. (e) The final notice shall include the following: (1) A statement of why the proposed action must be located in an area affecting or affected by a floodplain or a wetland; (2) A description of all significant facts considered in making this determination; (3) A list of the alternatives considered; (4) A statement indicating whether the action conforms to applicable state and local floodplain protection standards; (5) A statement indicating how the action affects or is affected by the floodplain and/or wetland, and how mitigation is to be achieved; (6) Identification of the responsible official or organization for implementation and monitoring of the proposed action, and from whom further information can be obtained; and (7) A map of the area or a statement that such map is available for public inspection, including the location at which such map may be inspected and a telephone number to call for information. (f) After providing the final notice, the Agency shall, without good cause shown, wait at least 15 days before carrying out the action. [45 FR 59526, Sept. 9, 1980, as amended at 48 FR 29318, June 24, 1983; 89 FR 57045, July 11, 2024] § 9.13 Particular types of temporary housing. (a) This section sets forth the procedures whereby the Agency will provide certain specified types of temporary housing at a private, commercial, or group site. (b) Prior to providing the temporary housing described in paragraph (a) of this section, the Agency shall comply with the provisions of this section. For temporary housing not enumerated above, the full 8-step process ( see (c) The actions described in paragraph (a) of this section are subject to the following decision-making process: (1) The temporary housing action shall be evaluated in accordance with the provisions of § 9.7 to determine if it is in or affects the 1 percent annual chance (base) floodplain or wetland. (2) No temporary housing unit may be placed on a site in a floodway or coastal high hazard area. (3) An individual or family shall not be housed in the 1 percent annual chance (base) floodplain or wetland unless the Regional Administrator has complied with the provisions of § 9.9 to determine that such site is the only practicable alternative. The following factors shall be substituted for the factors in § 9.9(c) and (e)(2) through (4): (i) Speedy provision of temporary housing; (ii) Potential flood risk to the temporary housing occupant; (iii) Cost effectiveness; (iv) Social and neighborhood patterns; (v) Timely availability of other housing resources; and (vi) Potential harm to the floodplain or wetland. (4) For temporary housing units at group sites, Step 4 of the 8-step process shall be applied in accordance with § 9.10. (5) An individual or family shall not be housed in a floodplain or wetland (except in existing resources) unless the Regional Administrator has complied with the provisions of § 9.11 to minimize harm to and within floodplains and wetlands. The following provisions shall be substituted for the provisions of § 9.11(d) for temporary housing units: (i) No temporary housing unit may be placed unless it is elevated to the fullest extent practicable up to the base flood elevation and adequately anchored. (ii) No temporary housing unit may be placed if such placement is inconsistent with the criteria of the NFIP (44 CFR parts 59 and 60) or any more restrictive Federal, State, or local floodplain management standard. Such standards may require elevation to the base flood elevation in the absence of a variance. (iii) Temporary housing units shall be elevated on open works (walls, columns, piers, piles, etc.) rather than on fill where practicable. (iv) To minimize the effect of floods on human health, safety and welfare, the Agency shall: (A) Where appropriate, integrate all of its proposed actions in placing temporary housing units for temporary housing in floodplains into existing flood warning or preparedness plans and ensure that available flood warning time is reflected; (B) Provide adequate access and egress to and from the proposed site of the temporary housing unit; and (C) Give special consideration to the unique hazard potential in flash flood and rapid-rise areas. (6) FEMA shall comply with Step 2 Early Public Notice (§ 9.8(c)) and Step 7 Final Public Notice (§ 9.12). In providing these notices, the emergency nature of temporary housing shall be taken into account. (7) FEMA shall carry out the actions in accordance with Step 8, ensuring the requirements of this section and the decision-making process are fully integrated into the provision of temporary housing. (d) The following applies to the permanent installation of a temporary housing unit as part of a sale or disposal of temporary housing: (1) FEMA shall not permanently install temporary housing units in floodways or coastal high hazard areas. FEMA shall not permanently install a temporary housing unit in floodplains as established by 9.7(c) or wetlands unless there is full compliance with the 8-step process. Given the vulnerability of temporary housing units to flooding, a rejection of a non-floodplain location alternative and of the no-action alternative shall be based on: (i) A compelling need of the family or individual to buy a temporary housing unit for permanent housing; and (ii) A compelling requirement to permanently install the unit in a floodplain. (2) FEMA shall not permanently install temporary housing units in the floodplain as established by § 9.7(c) unless they are or will be elevated at least to the elevation of the floodplain as established by § 9.7(c). (3) The Regional Administrator shall notify FEMA Resilience of each instance where a floodplain location has been found to be the only practicable alternative for permanent installation of a temporary housing unit. [45 FR 59526, Sept. 9, 1980, as amended at 47 FR 13149, Mar. 29, 1982; 49 FR 35584, Sept. 10, 1984; 50 FR 40006, Oct. 1, 1985; 89 FR 57045, July 11, 2024] § 9.14 Disposal of Agency property. (a) This section sets 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 decision-making 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 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 of floodplain and wetland development 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 elevation or 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 the Agency's 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 inside the floodplain but outside of the floodway and the coastal high hazard area; 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). (c) At the time of disposal, for all disposed property, the Agency shall reference in the conveyance uses that are restricted under existing Federal, State and local floodplain management and wetland protection standards relating to flood hazards and floodplain and wetland values. [45 FR 59526, Sept. 9, 1980, as amended at 89 FR 57045, July 11, 2024] § 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, 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 take an action in or affecting floodplains or wetlands as set out in § 9.6; (3) The practicability analysis as set out in § 9.9; (4) The mitigation responsibilities as set out in § 9.11; (5) The 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 the Agency's processing of the application due to failure of applicants to follow the provisions in this part. [45 FR 59526, Sept. 9, 1980, as amended at 89 FR 57046, July 11, 2024] § 9.17 Instructions to applicants. (a) Purpose. (b) Responsibilities of applicants. (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 practicability analysis as set out in § 9.9; (4) The mitigation responsibilities as set out in § 9.11; (5) The public notice 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. (d) Approval of applicants. [45 FR 59526, Sept. 9, 1980, as amended at 89 FR 57046, July 11, 2024] § 9.18 Responsibilities. (a) Regional Administrators' responsibilities. (1) Implement the requirements of the Orders and this part. Under §§ 9.2 and 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 decision of a Regional Administrator relating to disaster assistance is appealed, FEMA Resilience may make determinations under this part 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 Executive Order 11988, as amended, and section 3 of Executive Order 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. [45 FR 59526, Sept. 9, 1980, as amended at 49 FR 33879, Aug. 27, 1984; 74 FR 15336, Apr. 3, 2009; 89 FR 57046, July 11, 2024]