New FEMA Rules Shift ESA Consultation Requirements to Developers

The Federal Emergency Management Agency (FEMA) on Oct. 1 enacted new rules that apply to many developers in flood-prone areas that provide habitat for threatened and endangered species. The new rules, contained in Procedure Memorandum 64, were issued in response to several successful lawsuits by environmental groups against FEMA for not appropriately considering its responsibilities under the Endangered Species Act (ESA) when allowing development to take place. Now, FEMA is shifting those responsibilities to the landowners themselves.

When a project is proposed for a parcel of land within a floodplain, FEMA can issue a Conditional Letter of Map Revision (CLOMR) to state that the project, if built as proposed, would sufficiently modify the floodway, base-flow elevation and/or 100-year floodplain as shown on FEMA's Flood Insurance Rate Maps. Similarly, a Conditional Letter of Map Revision based on Fill (CLOMR-F) is used by FEMA when the parcel or proposed structure will be elevated by fill material to be above the base, 100-year floodplain.

The change indicated by Procedure Memorandum 64, requiring private landowners to provide proof that they are complying with the provisions of the Endangered Species Act before making any requests of FEMA, will likely add time and expense to any project in which property owners need flood map revisions to move forward, because they may first need to complete the Section 7 or Section 10 permit process. The Section 7 process can take 90 to 135 days to complete, while the Section 10 permit process can take about two years.

Going forward, NAHB will be adding clarifying information on this issue to our ESA section of NAHB.org, and we are reaching out to both FEMA and the Fish and Wildlife Service to discuss the implications of FEMA's memorandum.

Read more in Nation's Building News, or contact Matt Watkins (800-368-5242, x8327) for more information.