Application of Executive Orders on Floodplain Management and Protection of Wetlands

24 C.F.R. Part ..., Subpart B
in effectEffective: 2024-07-01

24 C.F.R. § 55.7 Identifying the FFRMS floodplain.

(a) HUD or the responsible entity shall determine all compliance with the floodplain review requirements of this part based on the FFRMS floodplain. (b) For a non-critical action, HUD or the responsible entity shall define the FFRMS floodplain using the following process: (1) The climate-informed science approach (CISA) to identify the area having an elevated flood risk during the anticipated life of the project if data is available and actionable. Data is available and actionable for a particular project where: (i) The data can be accessed via a tool, resource, or other process developed or identified by a Federal agency or agencies to define the floodplain using the CISA, and (ii) HUD has adopted the particular tool, resource, or other process through a Federal Register publication for comment. (2) If CISA data is not available or actionable but FEMA has defined the 0.2-percent-annual-chance floodplain, those areas that FEMA has designated as within the 0.2-percent-annual-chance floodplain; or (3) If neither CISA data nor FEMA-mapped 0.2-percent-annual-chance floodplain data is available, those areas that result from adding an additional two feet to the base flood elevation as established by the effective FIRM or FIS or—if available—FEMA-provided interim or preliminary maps or studies or advisory base flood elevations. (4) FFRMS floodplain determinations under paragraphs (b)(2) and (3) of this section shall be made using the information provided in the latest FEMA resources. Elevation determinations based on CISA data or an interim or preliminary FEMA map cannot be used as a basis for a lower elevation than the base flood elevation on the current FIRM or FIS. (c) For a critical action, the FFRMS floodplain is either: (1) Those areas designated as having an elevated flood risk identified by the climate-informed science approach (CISA)—as determined based on the criticality of the action—during the anticipated life of the project if the data is available and actionable, as available and actionable is described in paragraph (b)(1) of this section; or (2) If CISA data as described above is not available or actionable, an area either within the 0.2-percent-annual-chance floodplain or within the area that results from adding an additional three feet to the base flood elevation. The larger floodplain and higher elevation must be applied where the 0.2-percent-annual-chance floodplain is mapped. If FEMA resources do not map the 0.2-percent-annual-chance floodplain, the FFRMS floodplain is the area that results from adding an additional three feet to the base flood elevation based on best available information. (3) FFRMS floodplain determinations under paragraph (c)(2) of this section shall be made using the information provided in the latest FEMA resources. (d) If CISA data is not available or actionable and if FEMA FIRMS, FIS, preliminary maps or advisory base flood elevations are unavailable or insufficiently detailed to determine base flood elevation, other Federal, Tribal, State, or local data shall be used as “best available information.” If best available information is based only on past flooding and does not consider future flood risk: (1) For non-critical actions, the FFRMS floodplain includes those areas that result from adding an additional two feet to the base flood elevation based on best available information. (2) For critical actions, the FFRMS floodplain includes those areas that result from adding an additional three feet to the base flood elevation based on best available information. (e) When preparing an Environmental Impact Statement (EIS), an analysis of the best available, actionable climate science, where available and actionable data exists or can be generated in accordance with 42 U.S.C. 4336(b)(3), as determined by HUD or the responsible entity, must be performed to define the FFRMS floodplain. These sources may supplement the FIRM or Advisory Base Flood Elevation (ABFE) in order to better minimize impacts to projects or to elevate or floodproof structures above the risk adjusted floodplain. These sources may not be used as a basis for a lower elevation than otherwise required under this section. (f)(1) Regardless of whether HUD has adopted a particular tool, resource, or other process to define the floodplain using CISA, as described in paragraphs (b)(1) and (c)(1) of this section, HUD or a responsible entity may voluntarily define the FFRMS floodplain utilizing CISA when: (i) A State, Tribal, or local government formally adopts, through code or other formal adoption measures, a tool, resource, or other written standard developed or utilized by the State, Tribal, or local government that provides data or other methods to identify the FFRMS floodplain using CISA for a particular project; or (ii) HUD publishes guidance identifying a particular tool, resource, or other process that may be used to define the floodplain using CISA, and the tool, resource, or other process identified in the HUD-published guidance contains the necessary data or information to define the floodplain for the project being considered. (2)(i) The approach in this paragraph (f) may not be used as a basis for a lower elevation than the lowest of: (A) The 0.2-percent-annual-chance floodplain elevation; (B) The elevation that results from adding an additional two feet to the base flood elevation; or (C) The elevation required by paragraph (b) or (c) of this section, if CISA data is available and actionable under paragraph (b)(1) or (c)(1). (ii) Where HUD or a responsible entity voluntarily defines the FFRMS floodplain using the options in paragraph (f)(1)(i) or (ii) of this section, the criticality of the action must be considered when determining the appropriate elevation of the FFRMS floodplain.

24 C.F.R. § 55.8 Limitations on HUD assistance in floodplains.

(a) HUD financial assistance (including mortgage insurance) may not be approved with respect to: (1) Any action located in a floodway unless one of the following applies: (i) An exception listed in § 55.12 applies; or (ii) A permanent covenant or comparable restriction will preserve all onsite FFRMS floodplain and/or wetland areas from future development or expansion of existing uses in the floodplain and/or wetland areas. Any rehabilitation, including reconstruction in the case of properties affected by Presidentially declared disasters, that does not expand the footprint of the buildings or the number of units on the site would be allowed within the FFRMS floodplain outside of the floodway. No buildings or improvements may modify or occupy the floodway, with the exception of: (A) Functionally dependent uses (as defined in § 55.2(b)(7)) and utility lines; (B) De minimis improvements, including minimal ground disturbance or placement of impervious surface area to ensure accessibility where this is permitted by local ordinances and does not increase flood risk to the property; or (C) Buildings and improvements that will be removed as part of the proposed action. (2) Any critical action located in a floodway, other than a functionally dependent use where any existing or new structure has been or will be elevated or floodproofed to the FFRMS elevation for critical actions; or any critical action in a coastal high hazard area or LiMWA, other than a functionally dependent use where any existing or new structure has been or will be elevated and constructed in accordance with current FEMA V-zone construction standards at 44 CFR 60.3(e); provided that, for a critical action that is insurance of a mortgage on a property containing a floodway with no structures or improvements in the floodway, paragraph (a)(1) of this section applies; or (3) Any noncritical action located in a coastal high hazard area, or LiMWA, unless the action is a functionally dependent use, is limited to existing structures or improvements, or is reconstruction following destruction caused by a Presidentially declared disaster. If the action is not a functionally dependent use, the action must be designed for location in a coastal high hazard area. An action will be considered designed for a coastal high hazard area if: (i) In the case of reconstruction following destruction caused by a disaster, or substantial improvement, the work meets the current standards for V zones in FEMA regulations (44 CFR 60.3(e)) and, if applicable, the Minimum Property Standards for such construction in 24 CFR 200.926d(c)(4)(iii); or (ii) In the case of existing construction (including any minor improvements that are not substantial improvements): (A) The work met FEMA elevation and construction standards for a coastal high hazard area (or if such a zone or such standards were not designated, the 1-percent-annual-chance floodplain) applicable at the time the original improvements were constructed; or (B) If the original improvements were constructed before FEMA standards for the 1-percent-annual-chance floodplain became effective or before FEMA designated the location of the action as within the 1-percent-annual-chance floodplain, the work would meet at least the earliest FEMA standards for construction in the 1-percent-annual-chance floodplain. (b) All determinations made pursuant to this section shall be based on the effective FIRM or FIS unless FEMA has provided more current information. When FEMA provides interim flood hazard data, such as ABFE or preliminary maps and studies, HUD or the responsible entity shall use the latest of these sources. However, a base flood elevation from an interim or preliminary source cannot be used if it is lower than the base flood elevation on the current FIRM and FIS. (c) Where HUD assistance is proposed for actions subject to § 55.20 on structures designated by FEMA as Severe Repetitive Loss (SRL) properties, and FEMA has approved measures that if implemented would qualify the property for a status of “Mitigated” as to the SRL list, HUD or the responsible entity will ensure that FEMA-identified mitigation measures are identified and implemented as part of the decision making process under § 55.20(e).

24 C.F.R. § 55.9 Identifying wetlands.

The following process shall be followed in making the wetlands determination: (a) HUD or the responsible entity shall determine whether the action involves new construction that is located in or impacts a wetland. (b) As primary screening, HUD or the responsible entity shall verify whether the project area is located in proximity to wetlands identified on the National Wetlands Inventory (NWI) and assess the site for visual indication of the presence of wetlands such as hydrology (water), hydric soils, or wetland vegetation. Where the primary screening is inconclusive, potential wetlands should be further evaluated using one or more of the following methods: (1) Consultation with the Department of the Interior, U.S. Fish and Wildlife Service (USFWS), for information concerning the location, boundaries, scale, and classification of wetlands within the area. (2) Reference to the Department of Agriculture, Natural Resources Conservation Service (NRCS) National Soil Survey (NSS), and any Tribal, State, or local information concerning the location, boundaries, scale, and classification of wetlands within the action area and further site study by the environmental review preparer with reference to Federal guidance on field identification of the biological (rather than jurisdictional) characteristics of wetlands. (3) Evaluation by a qualified wetlands scientist to delineate the wetland boundaries on site.

24 C.F.R. § 55.10 Limitations on HUD assistance in wetlands.

(a) When the proposed project includes new construction activities (including grading, clearing, draining, filling, diking, impounding, and related activities for any structure or facilities including the siting of new manufactured housing units) that will have a direct impact to onsite wetlands identified by the process described in § 55.9, compliance with this part requires completion of the 8-step decision making process in § 55.20 to address wetland impacts. (b) When the proposed project may indirectly affect wetlands by modifying the flow of stormwater, releasing pollutants, or otherwise changing conditions that contribute to wetlands viability, the significance of these impacts must be evaluated and the impacts minimized through best management practices. If the project site includes wetlands that will not be impacted by new construction, HUD strongly encourages measures to preserve such wetlands from future impacts, including by obtaining a restrictive covenant, conservation easement, or other mechanism. (c) When the proposed project may indirectly affect off-site wetlands, impacts should be minimized to the extent practicable. While this part does not require further decision making to address these effects under the authority of Executive Order 11990, measures to address offsite wetlands impacts may be necessary to comply with related laws and authorities including the Endangered Species Act or to address significant impacts under the National Environmental Policy Act.

24 C.F.R. § 55.12 Inapplicability of 24 CFR part 55 to certain categories of proposed actions.

With the exception of the flood insurance requirements in § 55.5, this part shall not apply to the following categories of proposed HUD actions: (a) HUD-assisted activities described in 24 CFR 58.34 and 58.35(b); (b) HUD-assisted activities described in 24 CFR 50.19, except as otherwise indicated in § 50.19; (c) The approval of financial assistance for restoring and preserving the natural and beneficial functions and values of floodplains and wetlands, including through acquisition of such floodplain and wetland property, where a permanent covenant or comparable restriction is placed on the property's continued use for flood control, wetland protection, open space, or park land, but only if: (1) The property is cleared of all existing buildings and walled structures; and (2) The property is cleared of related improvements except those which: (i) Are directly related to flood control, wetland protection, open space, or park land (including playgrounds and recreation areas); (ii) Do not modify existing wetland areas or involve fill, paving, or other ground disturbance beyond minimal trails or paths; and (iii) Are designed to be compatible with the beneficial floodplain or wetland function of the property. (d) An action involving a repossession, receivership, foreclosure, or similar acquisition of property to protect or enforce HUD's financial interests under previously approved loans, grants, mortgage insurance, or other HUD assistance; (e) Policy-level actions described at 24 CFR 50.16 that do not involve site-based decisions; (f) A minor amendment to a previously approved action with no additional adverse impact on or from a floodplain or wetland; (g) HUD's or the responsible entity's approval of a project site, an incidental portion of which is situated in the FFRMS floodplain (not including the floodway, LiMWA, or coastal high hazard area), but only if: (1) The proposed project site does not include any existing or proposed buildings or improvements that modify or occupy the FFRMS floodplain except de minimis improvements such as recreation areas and trails; and (2) The proposed project will not result in any new construction in or modifications of a wetland. (h) Issuance or use of Housing Vouchers or other forms of rental subsidy where HUD, the awarding community, or the public housing agency that administers the contract awards rental subsidies that are not project-based (i.e., do not involve site-specific subsidies); (i) Special projects directed to the removal of material and architectural barriers that restrict the mobility of and accessibility to elderly and persons with disabilities.

24 C.F.R. § 55.13 Inapplicability of 8-step decision making process to certain categories of proposed actions.

The decision-making process in § 55.20 shall not apply to the following categories of proposed actions: (a) HUD's mortgage insurance actions and other financial assistance for the purchasing, mortgaging, or refinancing of existing one- to four-family properties in communities that are in the Regular Program of the National Flood Insurance Program (NFIP) and in good standing (i.e., not suspended from program eligibility or placed on probation under 44 CFR 59.24), where the action is not a critical action and the property is not located in a floodway, coastal high hazard area, or LiMWA; (b) Financial assistance for minor repairs or improvements on one- to four-family properties that do not meet the thresholds for “substantial improvement” under § 55.2(b)(12); (c) HUD or a recipient's actions involving the disposition of individual HUD or recipient held one- to four-family properties; (d) HUD guarantees under the Loan Guarantee Recovery Fund Program (24 CFR part 573), where any new construction or rehabilitation financed by the existing loan or mortgage has been completed prior to the filing of an application under the program, and the refinancing will not allow further construction or rehabilitation, nor result in any physical impacts or changes except for routine maintenance; (e) The approval of financial assistance to lease an existing structure and/or units within an existing structure located within the floodplain, but only if; (1) The structure is located outside the floodway or coastal high hazard area, and is in a community that is in the Regular Program of the NFIP and in good standing (i.e., not suspended from program eligibility or placed on probation under 44 CFR 59.24); (2) The project is not a critical action; and (3) The entire structure is or will be fully insured or insured to the maximum extent available under the NFIP for at least the term of the lease. (f) Special projects for the purpose of improving the energy or water efficiency of utilities or installing renewable energy that involve the repair, rehabilitation, modernization, weatherization, or improvement of existing structures or infrastructure, do not meet the thresholds for “substantial improvement” under § 55.2(b)(12), and do not include the installation of equipment below the FFRMS floodplain elevation; and

24 C.F.R. § 55.14 Modified 5-step decision making process for certain categories of proposed actions.

The decision making steps in § 55.20(b), (c), and (g) (Steps 2, 3, and 7) do not apply to the following categories of proposed actions: (a) HUD's or the recipient's actions involving the disposition of acquired multifamily housing projects or “bulk sales” of HUD-acquired (or under part 58 of recipients') one- to four-family properties in communities that are in the Regular Program of the NFIP and in good standing (i.e., not suspended from program eligibility or placed on probation under 44 CFR 59.24). For programs subject to part 58, this paragraph applies only to recipients' disposition activities that are subject to review under part 58. (b) HUD's actions under the National Housing Act (12 U.S.C. 1701 et seq.) for the purchase or refinancing of existing multifamily housing projects, hospitals, nursing homes, assisted living facilities, board and care facilities, and intermediate care facilities, in communities that are in good standing under the NFIP. (c) HUD's or the recipient's actions under any HUD program involving the repair, rehabilitation, modernization, weatherization, or improvement of existing multifamily housing projects, hospitals, nursing homes, assisted living facilities, board and care facilities, intermediate care facilities, and one- to four-family properties, in communities that are in the Regular Program of the NFIP and are in good standing (i.e., not suspended from program eligibility or placed on probation under 44 CFR 59.24), provided that the number of units is not increased more than 20 percent, the action does not involve a conversion from nonresidential to residential land use, the action does not meet the thresholds for “substantial improvement” under § 55.2(b)(12), and the footprint of the structure and paved areas is not increased by more than 20 percent. (d) HUD's or the recipient's actions under any HUD program involving the repair, rehabilitation, modernization, weatherization, or improvement of existing nonresidential buildings and structures, in communities that are in the Regular Program of the NFIP and are in good standing (i.e., not suspended from program eligibility or placed on probation under 44 CFR 59.24), provided that the action does not meet the thresholds for “substantial improvement” under § 55.2(b)(12) and the footprint of the structure and paved areas is not increased by more than 20 percent. (e) HUD's or the recipient's actions under any HUD program involving the repair, rehabilitation, or replacement of existing nonstructural improvements including streets, curbs, and gutters, where any increase of the total impervious surface area of the facility is de minimis. This provision does not include critical actions, levee systems, chemical storage facilities (including any tanks), wastewater facilities, or sewer lagoons.

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