PART 77—FLOOD MITIGATION GRANTS Authority: 6 U.S.C. 101 et seq.; et seq.; Source: 86 FR 50667, Sept. 10, 2021, unless otherwise noted. § 77.1 Purpose and applicability. (a) The purpose of this part is to prescribe actions, procedures, and requirements for administration of the Flood Mitigation Assistance (FMA) grant program made available under 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. (b) This part applies to the administration of funds under the FMA program for which the application period opens on or after October 12, 2021. § 77.2 Definitions. (a) Except as otherwise provided in this part, the definitions set forth in § 59.1 of this subchapter are applicable to this part. (b) Applicant (c) Closeout (d) Community (1) A political subdivision, including any Indian Tribe, authorized Tribal organization, Alaska Native village or authorized native organization, that has zoning and building code jurisdiction over a particular area having special flood hazards, and is participating in the NFIP; or (2) A political subdivision of a State or other authority that is designated by political subdivisions, all of which meet the requirements of paragraph (d)(1) of this section, to administer grants for mitigation activities for such political subdivisions. (e) Federal award (f) Indian Tribal government (g) Pass-through entity (h) Recipient (i) Repetitive loss structure (1) Has incurred flood-related damage on 2 occasions, in which the cost of repair, on average, equaled or exceeded 25% of the value of the structure at the time of each such flood event; and (2) At the time of the second incidence of flood related damage, the contract for flood insurance contains increased cost of compliance coverage. (j) Severe repetitive loss structure (1) For which 4 or more separate claims payments have been made under flood insurance coverage under subchapter B of this chapter, with the amount of each claim (including building and contents payments) exceeding $5,000, and with the cumulative amount of such claims payments exceeding $20,000; or (2) For which at least 2 separate flood insurance claims payments (building payments only) have been made, with cumulative amount of such claims exceeding the value of the insured structure. (k) State (l) Subaward (m) Subapplicant (n) Subrecipient (o) Administrator (p) Regional Administrator § 77.3 Responsibilities. (a) Federal Emergency Management Agency (FEMA). (1) Issue program implementation procedures, as necessary, which will include information on availability of funding; (2) Award all grants to the recipient after evaluating subaward applications for eligibility and ensuring compliance with applicable Federal laws, giving priority to such properties, or to the subset of such properties, as the Administrator may determine are in the best interest of the NFIF; (3) Provide technical assistance and training to State, local and Indian Tribal governments regarding the mitigation and grants management process; (4) Review and approve State, Indian Tribal, and local mitigation plans in accordance with part 201 of this chapter; (5) Comply with applicable Federal statutory, regulatory, and Executive Order requirements related to environmental and historic preservation compliance, including reviewing and supplementing, if necessary, the environmental analyses conducted by the State and subrecipient in accordance with applicable laws, regulations, and agency policy; (6) Monitor implementation of awards through quarterly reports; and (7) Review all closeout documentation for compliance and sending the recipient a request for additional supporting documentation, if needed. (b) Recipient. (1) Have a FEMA approved Mitigation Plan in accordance with part 201 of this chapter; (2) Provide technical assistance and training to communities on mitigation planning, mitigation project activities, developing subaward applications, and implementing approved subawards; (3) Prioritize and recommend subaward applications to be approved by FEMA, based on the applicable mitigation plan(s), other evaluation criteria, and the eligibility criteria described in § 77.6; (4) Award FEMA-approved subawards; (5) Monitor and evaluate the progress of the mitigation activity in accordance with the approved original scope of work and budget through quarterly reports; (6) Closeout the subaward in accordance with 2 CFR 200.344 and 200.345, and applicable FEMA guidance; and (7) Comply with program requirements under this part, grant management requirements identified under 2 CFR parts 200 and 3002, the grant agreement articles, and other applicable Federal, State, Tribal and local laws and regulations. (c) Subrecipient. (1) Complete and submit subaward applications to the recipient for FMA planning and project subawards; (2) Implement all approved subawards; (3) Monitor and evaluate the progress of the mitigation activity in accordance with the approved original scope of work and budget through quarterly reports; (4) Comply with program requirements under this part, grant management requirements identified under 2 CFR parts 200 and 3002, the grant agreement articles, and other applicable Federal, State, Tribal and local laws and regulations; and (5) Closeout the subaward in accordance with 2 CFR 200.344 and 200.345, and applicable FEMA guidance. § 77.4 Availability of funding. (a) Allocation. (2) The amount of FMA funds used may not exceed $50,000 for any mitigation plan of a State or $25,000 for any mitigation plan of a community. (b) Cost share. (1) For each severe repetitive loss structure, FEMA may contribute either: (i) Up to 100 percent of all eligible costs if the activities are technically feasible and cost effective; or (ii) Up to the amount of the expected savings to the NFIP for acquisition or relocation activities; (2) For repetitive loss structures, FEMA may contribute up to 90 percent of the eligible costs; (3) For all other mitigation activities, FEMA may contribute up to 75 percent of all eligible costs. (4) For projects that contain a combination of severe repetitive loss, repetitive loss, and/or other insured structures, the cost share will be calculated as appropriate for each type of structure submitted in the project subapplication. (c) Failure to make award within 5 years. § 77.5 Application process. (a) Applicant. (2) The applicant is responsible for soliciting applications from eligible communities, or subapplicants, and for reviewing and prioritizing applications prior to forwarding them to FEMA for review and award. (b) Subapplicant. § 77.6 Eligibility. (a) NFIP requirements. (2) For projects that impact individual structures, for example, acquisitions and elevations, an NFIP policy for the structure must be in effect prior to the opening of the application period and be maintained for the life of the structure. (b) Plan requirement Applicants. (2) Subapplicants. (c) Eligible activities Planning. (2) Projects. (i) Acquisition of real property from property owners, and demolition or relocation of buildings and/or structures to areas outside of the floodplain to convert the property to open space use in perpetuity, in accordance with part 80 of this subchapter; (ii) Elevation of existing structures to at least base flood levels or higher, if required by FEMA or if required by any State or local ordinance, and in accordance with criteria established by the Administrator; (iii) Floodproofing of existing non-residential structures in accordance with the requirements of the NFIP or higher standards if required by FEMA or if required by any State or local ordinance, and in accordance with criteria established by the Administrator; (iv) Floodproofing of historic structures as defined in § 59.1 of this subchapter; (v) Demolition and rebuilding of properties to at least base flood levels or higher, if required by FEMA or if required by any State or local ordinance, and in accordance with criteria established by the Administrator; (vi) Localized flood risk reduction projects that lessen the frequency or severity of flooding and decrease predicted flood damages, and that do not duplicate the flood prevention activities of other Federal agencies. Non-localized flood risk reduction projects such as dikes, levees, floodwalls, seawalls, groins, jetties, dams and large-scale waterway channelization projects are not eligible unless the Administrator specifically determines in approving a mitigation plan that such activities are the most cost-effective mitigation activities for the National Flood Mitigation Fund; (vii) Elevation, relocation, or floodproofing of utilities; and (viii) Other mitigation activities not described or identified in (c)(2)(i) through (vii) of this section that are described in the State, Tribal or local mitigation plan. (3) Technical assistance. (4) Project scoping. (d) Minimum project criteria. (1) Be in conformance with State, Tribal and/or local mitigation plans approved under part 201 of this chapter for the jurisdiction where the project is located; (2) Be in conformance with applicable environmental and historic preservation laws, regulations, and agency policy, including parts 9 and 60 of this chapter, and other applicable Federal, State, Tribal, and local laws and regulations; (3) Be technically feasible and cost-effective; or, eliminate future payments from the NFIF for severe repetitive loss structures through an acquisition or relocation activity; (4) Solve a problem independently, or constitute a functional portion of a long-term solution where there is assurance that the project as a whole will be completed. This assurance will include documentation identifying the remaining funds necessary to complete the project, and the timeframe for completing the project; (5) Consider long-term changes to the areas and entities it protects, and have manageable future maintenance and modification requirements. The subrecipient is responsible for the continued maintenance needed to preserve the hazard mitigation benefits of these measures; and (6) Not duplicate benefits available from another source for the same purpose or assistance that another Federal agency or program has more primary authority to provide. § 77.7 Allowable costs. (a) General. (1) Eligible management costs Recipient. (ii) Subrecipient. (2) Indirect costs. (b) Pre-award costs. (c) Duplication of benefits. (d) Negligence or other tortious conduct. (e) Legal obligations. § 77.8 Grant administration. (a) General. (b) Cost overruns. (i) Funds are available to meet the requested increase in funding; and (ii) The amended grant award meets the eligibility requirements, including cost share requirements, identified in this section. (2) Recipients may use cost underruns from ongoing subawards to offset overruns incurred by another subaward(s) awarded under the same award. All costs for which funding is requested must have been included in the original subapplication's cost estimate. In cases where an underrun is not available to cover an overrun, the Administrator may, with justification from the recipient and subrecipient, use other available FMA funds to cover the cost overrun. (3) For all cost overruns that exceed the amount approved under the award, and which require additional Federal funds, the recipient must submit a written request with a recommendation, including a justification for the additional funding to the Regional Administrator for a determination. If approved, the Regional Administrator will increase the award through an amendment to the original award document. (c) Recapture. (d) Remedies for noncompliance. (e) Reconsideration.