2021-06-28-minutes-public-works-study-session

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FEMA R10 FAQ: Rescinded Policy on Fish Enhancement Structures in the Floodway Why was the policy rescinded? FEMA rescinded the policy after determining that it was inconsistent with mandatory NFIP standards for permitting development in the floodway. It also came to FEMA's attention that a number of communities in Region 10 misread the policy as a waiver of the H&H analyses requirement for permitting floodway projects that included habitat benefits or protections in their designs. BACKGROUND Federal regulations that govern the NFIP, specifically CFR Title 44 Parts 60.3(d)(3) and (4), clearly outline the mandatory steps communities must follow when reviewing proposals for floodway development. FEMA defines development as "any man-made change to improved or unimproved real estate," which includes man-made changes meant to restore habitat and natural floodplain functions. If H&H analyses show that a proposed development will not cause a rise in the BFE, the community may permit it, although a LOMR may be required once work is complete if the analyses show other changes to the flood risk communicated by the maps. If H&H analyses show a rise in BFE and the community wishes to support the project, it must require a CLOMR prior to construction and a LOMB once construction is complete. In 2020, FEMA determined that the former policy's suggestion that even a very small rise could be permitted without following the CLOMR/LOMB process to update the affected flood map was inconsistent with these regulations. FEMA Region 10 offers guidance on how H&H analyses can be conducted to determine if a proposed project will cause a rise in the BFE within the community. Did the former policy provide a waiver of H&H analyses for habitat restoration projects? No, the rescinded policy was not a waiver of the H&H requirement for projects designed to benefit or protect habitat. H&H analyses have always been mandatory for floodway development regardless of that development's purpose. Communities that misread the former policy as a waiver of H&H analyses must take steps to correct this deficiency in their floodplain management programs. It is essential that community floodplain officials and proponents of habitat restoration projects work together in the design phase to ensure that all floodplain management regulations are considered. BACKGROUND All communities that participate in the NFIP must adopt and enforce a mandatory set of development standards as a condition of their continued participation. Fundamental to these standards is that all development in the SFHA must be reviewed for compliance with adopted regulations and only allowed to proceed when authorized by the community through a development permit. One of the mandatory standards that communities must adopt into ordinance and enforce is 44 CFR 60.3(d)(3), which prohibits encroachments into the floodway unless H&H analyses are conducted and demonstrate that no rise in the BFE will occur within the community as a result of a proposed project. Issuing permits for development in the floodway without meeting the H&H requirement (as well as following the CLOMR/LOMR process when appropriate) jeopardizes a community's continued participation in the NFIP. Development in violation of the requirements in CFR will require remediation which may include removal of the project and restoration to pre -construction conditions. Learn more at feme.gov Mar 2021 2