PART 80—PROPERTY ACQUISITION AND RELOCATION FOR OPEN SPACE Authority: Robert T. Stafford disaster relief and emergency assistance act, 42 U.S.C. 5121 through 5207; the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4001 et seq.; Source: 72 FR 61743, Oct. 31, 2007, unless otherwise noted. Subpart A—General § 80.1 Purpose and scope. This part provides guidance on the administration of FEMA mitigation assistance for projects to acquire property for open space purposes under all FEMA hazard mitigation assistance programs. It provides information on the eligibility and procedures for implementing projects for acquisition and relocation of at-risk properties from the hazard area to maintain the property for open space purposes. This part applies to property acquisition for open space project awards made under any FEMA hazard mitigation assistance program. This part supplements general program requirements of the funding grant program and must be read in conjunction with the relevant program regulations and guidance available at http://www.fema.gov. http://www.fema.gov § 80.3 Definitions. (a) Except as noted in this part, the definitions applicable to the funding program apply to implementation of this part. In addition, for purposes of this part: (b) Applicant (c) Federal award (d) Market Value (e) National of the United States (f) Pass-through entity (g) Purchase offer (h) Qualified alien (i) Qualified conservation organization (j) Recipient (k) Subapplicant (l) Subaward (m) Subrecipient (n) Administrator (o) Regional Administrator [86 FR 50670, Sept. 10, 2021] § 80.5 Roles and responsibilities. The roles and responsibilities of FEMA, the State, the subapplicant/subrecipient, and participating property owners in the particular context of mitigation projects for the purpose of creating open space include the activities in this section. These are in addition to grants management roles and responsibilities identified in regulations and guidance of the program funding the project (available at http://www.fema.gov (a) Federal roles and responsibilities. (1) Providing technical assistance to the applicant/recipient to assist in implementing project activities in compliance with this part; (2) Reviewing applications for eligibility and compliance with this part; (3) Reviewing proposals for subsequent transfer of a property interest and approving appropriate transferees; (4) Making determinations on the compatibility of proposed uses with the open space purpose, in accordance with § 80.19; (5) Complying with applicable Federal statutory, regulatory, and Executive Order requirements related to environmental and historic preservation compliance, including reviewing and supplementing, if necessary, environmental analyses conducted by the State and subrecipient in accordance with applicable laws, regulations, and agency policy; (6) Providing no Federal disaster assistance, flood insurance claims payments, or other FEMA assistance with respect to the property or any open-space related improvements, after the property interest transfers; and (7) Enforcing the requirements of this part and the deed restrictions to ensure that the property remains in open space use in perpetuity. (b) State (applicant/recipient) roles and responsibilities. (1) Providing technical assistance to the subapplicant/subrecipient to assist in implementing project activities in compliance with this part; (2) Ensuring that applications are not framed in a manner that has the effect of circumventing any requirements of this part; (3) Reviewing the application to ensure that the proposed activity complies with this part, including ensuring that the property acquisition activities remain voluntary in nature, and that the subrecipient and property owners are made aware of such; (4) Submitting to FEMA subapplications for proposed projects in accordance with the respective program schedule and programmatic requirements, and including all the requisite information to enable FEMA to determine the eligibility, technical feasibility, cost effectiveness, and environmental and historic preservation compliance of the proposed projects; (5) Reviewing proposals for subsequent transfer of property interest and obtaining FEMA approval of such transfers; and ensuring that all uses proposed for the property are compatible with open space project purposes; (6) Making no application for, nor providing, Federal disaster assistance or other FEMA assistance for the property or any open-space related improvements, after the property interest transfers; (7) Enforcing the terms of this part and the deed restrictions to ensure that the property remains in open space use in perpetuity; and (8) Reporting on property compliance with the open space requirements after the grant is awarded. (c) Subapplicant/Subrecipient roles and responsibilities. (1) Submitting all applications for proposed projects in accordance with the respective program schedule and programmatic requirements, and including all the requisite information to enable the applicant/recipient and FEMA to determine the eligibility, technical feasibility, cost effectiveness, and environmental and historic preservation compliance of the proposed projects; (2) Ensuring that applications are not framed in a manner that has the effect of circumventing any requirements of this part; (3) Coordinating with the property owners to ensure they understand the benefits and responsibilities of participating in the project, including that participation in the project is voluntary, and that the property owner(s) are made aware of such; (4) Developing the application and implementing property acquisition activities in compliance with this part, and ensuring that all terms of the deed restrictions and grant award are enforced; (5) Ensuring fair procedures and processes are in place to compensate property owners and tenants affected by the purchase of property; such as determining property values and/or the amount of the mitigation offer, and reviewing property owner disputes regarding such offers; (6) Making no application for Federal disaster assistance, flood insurance, or other FEMA benefits for the property or any open-space related improvements, after the property interest transfers; (7) Taking and retaining full property interest, consistent with this part; or if transferring such interest, obtaining approval of the recipient and FEMA; (8) Submitting to the recipient and FEMA proposed uses on the property for open space compatibility determinations; and (9) Monitoring and reporting on property compliance after the grant is awarded. (d) Participating property owner roles and responsibilities. [72 FR 61743, Oct. 31, 2007, as amended at 81 FR 56533, Aug. 22, 2016; 86 FR 50671, Sept. 10, 2021] Subpart B—Requirements Prior to Award § 80.7 General. A project involving property acquisition or the relocation of structures for open space is eligible for hazard mitigation assistance only if the subapplicant meets the pre-award requirements set forth in this subpart. A project may not be framed in a manner that has the effect of circumventing the requirements of this subpart. § 80.9 Eligible and ineligible costs. (a) Allowable costs. (b) Pre-award costs. (c) Duplication of benefits. (d) Negligence or other tortious conduct. (e) FEMA mitigation grant funds are not available to satisfy or reimburse for legal obligations, such as those imposed by a legal settlement, court order, or State law. [72 FR 61743, Oct. 31, 2007, as amended at 86 FR 50671, Sept. 10, 2021] § 80.11 Project eligibility. (a) Voluntary participation. (b) Acquisition of improved properties. (c) Subdivision restrictions. (d) Subapplicant property interest. (e) Hazardous materials. (f) Open space restrictions. [72 FR 61743, Oct. 31, 2007, as amended at 74 FR 47481, Sept. 16, 2009; 86 FR 50671, Sept. 10, 2021] § 80.13 Application information. (a) An application for acquisition of property for the purpose of open space must include: (1) A photograph that represents the appearance of each property site at the time of application; (2) Assurances that the subapplicant will implement the project grant award in compliance with subparts C and D of this part; (3) The deed restriction language, which must be consistent with the FEMA model deed restriction that the local government will record with the property deeds. Any variation from the model deed restriction language can only be made with prior approval from FEMA's Office of Chief Counsel; (4) The documentation of voluntary interest signed by each property owner, which must include that the subapplicant has informed them in writing that it will not use its eminent domain authority for the open space purpose; and (5) Assurance that the subject property is not part of an intended, planned, or designated project area for which the land is to be acquired by a certain date, and that local and State governments have no intention to use the property for any public or private facility in the future inconsistent with this part; (6) If the subapplicant is offering pre-event value: the property owner's certification that the property owner is a National of the United States or qualified alien; and (7) Other information as determined by the Administrator. (b) Consultation regarding other ongoing Federal activities. (2) The subapplicant must demonstrate that it has coordinated with its State Department of Transportation to ensure that no future, planned modifications, improvements, or enhancements to Federal aid systems are under consideration that will affect the subject property. (c) Restriction on alternate properties. [72 FR 61743, Oct. 31, 2007, as amended at 74 FR 47481, Sept. 16, 2009; 86 FR 50671, Sept. 10, 2021] Subpart C—Post-Award Requirements § 80.15 General. A project involving property acquisition or the relocation of structures for open space must be implemented consistent with the requirements set forth in this subpart. § 80.17 Project implementation. (a) Hazardous materials. (b) Clear title. (c) Purchase offer and supplemental payments. (i) The relevant event for Robert T. Stafford Disaster Relief and Emergency Assistance Act assistance under HMGP is the major disaster under which funds are available; for assistance under the Pre-disaster Mitigation program (PDM) (42 U.S.C. 5133), it is the most recent major disaster. Where multiple disasters have affected the same property, the recipient and subrecipient will determine which is the relevant event. (ii) The relevant event for assistance under the National Flood Insurance Act is the most recent event resulting in a National Flood Insurance Program (NFIP) claim of at least $5,000. (2) The recipient should coordinate with the subrecipient in their determination of whether the valuation should be based on pre-event or current market value. Generally, the same method to determine market value should be used for all participants in the project. (3) A property owner who did not own the property at the time of the relevant event, or who is not a National of the United States or qualified alien, is not eligible for a purchase offer based on pre-event market value of the property. Subrecipients who offer pre-event market value to the property owner must have already obtained certification during the application process that the property owner is either a National of the United States or a qualified alien. (4) Certain tenants who must relocate as a result of the project are entitled to relocation benefits under the Uniform Relocation Assistance and Real Property Acquisition Act (such as moving expenses, replacement housing rental payments, and relocation assistance advisory services) in accordance with 49 CFR part 24. (5) If a purchase offer for a residential property is less than the cost of the homeowner-occupant to purchase a comparable replacement dwelling outside the hazard-prone area in the same community, subrecipients for mitigation grant programs may make such a payment available in accordance with criteria determined by the Administrator. (6) The subrecipient must inform each property owner, in writing, of what it considers to be the market value of the property, the method of valuation and basis for the purchase offer, and the final offer amount. The offer will also clearly state that the property owner's participation in the project is voluntary. (d) Removal of existing buildings. (e) Deed restriction. [86 FR 50671, Sept. 10, 2021] § 80.19 Land use and oversight. This section applies to acquisitions for open space projects to address flood hazards. If the Administrator determines to mitigate in other circumstances, he/she will adapt the provisions of this section as appropriate. (a) Open space requirements. (1) These uses may include: Parks for outdoor recreational activities; wetlands management; nature reserves; cultivation; grazing; camping (except where adequate warning time is not available to allow evacuation); unimproved, unpaved parking lots; buffer zones; and other uses FEMA determines compatible with this part. (i) Allowable uses generally do not include: Walled buildings, levees, dikes, or floodwalls, paved roads, highways, bridges, cemeteries, landfills, storage of any hazardous or toxic materials, above or below ground pumping and switching stations, above or below ground storage tanks, paved parking, off-site fill or other uses that obstruct the natural and beneficial functions of the floodplain. (ii) In the rare circumstances where the Administrator has determined competing Federal interests were unavoidable and has analyzed floodplain impacts for compliance with § 60.3 of this subchapter or higher standards, the Administrator may find only USACE projects recognized by FEMA in 2000 and improvements to pre-existing Federal-aid transportation systems to be allowable uses. (2) No new structures or improvements will be built on the property except as indicated below: (i) A public facility that is open on all sides and functionally related to a designated open space or recreational use; (ii) A public restroom; or (iii) A structure that is compatible with open space and conserves the natural function of the floodplain, which the Administrator approves in writing before the construction of the structure begins. (3) Any improvements on the property must be in accordance with proper floodplain management policies and practices. Structures built on the property according to paragraph (a)(2) of this section must be floodproofed or elevated to at least the base flood level plus 1 foot of freeboard, or greater, if required by FEMA, or if required by any State or local ordinance, and in accordance with criteria established by the Administrator. (4) After the date of property settlement, no Federal entity or source may provide disaster assistance for any purpose with respect to the property, nor may any application for such assistance be made to any Federal entity or source. (5) The property is not eligible for coverage under the NFIP for damage to structures on the property occurring after the date of the property settlement, except for pre-existing structures being relocated off the property as a result of the project. (b) Subsequent transfer. (1) The request by the subrecipient, through the State, to the Regional Administrator must include a signed statement from the proposed transferee that it acknowledges and agrees to be bound by the terms of this section, and documentation of its status as a qualified conservation organization if applicable. (2) The subrecipient may convey a property interest only to a public entity or to a qualified conservation organization. However, the subrecipient may convey an easement or lease to a private individual or entity for purposes compatible with the uses described in paragraph (a) of this section, with the prior approval of the Regional Administrator, and so long as the conveyance does not include authority to control and enforce the terms and conditions of this section. (3) If title to the property is transferred to a public entity other than one with a conservation mission, it must be conveyed subject to a conservation easement that must be recorded with the deed and must incorporate all terms and conditions set forth in this section, including the easement holder's responsibility to enforce the easement. This must be accomplished by one of the following means: (i) The subrecipient will convey, in accordance with this paragraph (b), a conservation easement to an entity other than the title holder, which must be recorded with the deed, or (ii) At the time of title transfer, the subrecipient will retain such conservation easement, and record it with the deed. (4) Conveyance of any property interest must reference and incorporate the original deed restrictions providing notice of the conditions in this section and must incorporate a provision for the property interest to revert to the subrecipient or recipient in the event that the transferee ceases to exist or loses its eligible status under this section. (c) Inspection. (d) Monitoring and reporting. (e) Enforcement. (1) The recipient will notify the subrecipient and any current holder of the property interest in writing and advise them that they have 60 days to correct the violation. If the subrecipient or any current holder of the property interest fails to demonstrate a good faith effort to come into compliance with the terms of the grant within the 60-day period, the recipient will enforce the terms of the grant by taking any measures it deems appropriate, including but not limited to bringing an action at law or in equity in a court of competent jurisdiction. (2) FEMA, its representatives, and assignees may enforce the terms of the grant by taking any measures it deems appropriate, including but not limited to 1 or more of the following: (i) Withholding FEMA mitigation awards or assistance from the State and subrecipient; and current holder of the property interest. (ii) Requiring transfer of title. The subrecipient or the current holder of the property interest will bear the costs of bringing the property back into compliance with the terms of the grant; or (iii) Bringing an action at law or in equity in a court of competent jurisdiction against any or all of the following parties: The recipient, the subrecipient, and their respective successors. [73 FR 61743, Oct. 31, 2007, as amended at 86 FR 50672, Sept. 10, 2021] Subpart D—After the Grant Requirements § 80.21 Closeout requirements. Upon closeout of the grant, the subrecipient, through the recipient, must provide FEMA, with the following: (a) A copy of the deed recorded for each property, demonstrating that each property approved in the original application was mitigated and that the deed restrictions recorded are consistent with the FEMA model deed restriction language to meet the requirements of this part; (b) A photo of each property site after project completion; (c) The latitude-longitude coordinates of each property site; (d) Identification of each property as a repetitive loss structure, if applicable; and (e) Other information as determined by the Administrator. [73 FR 61743, Oct. 31, 2007, as amended at 86 FR 50672, Sept. 10, 2021]