ELIGIBILITY OF FLOOD RISK REDUCTION MEASURES UNDER
THE HAZARD MITIGATION ASSISTANCE (HMA) PROGRAMS
On June 18,
2014, the Federal Emergency Management Agency
(FEMA), which is an agency of the United States Department of Homeland
Security that coordinates the response to a disaster that has occurred in the
United States, announced a new policy entitled “Eligibility
of Flood Risk Reduction Measures under the Hazard Mitigation Assistance (HMA)
Programs.” This new policy, which applies to Federal, State, tribal, and
local authorities involved in the administration of HMA Programs, describes a
change in FEMA’s HMA Program guidance concerning the types of physical flood
risk reduction projects FEMA may consider for funding under its HMA Programs.
The HMA Program
authorities are provided by the National Flood Insurance Act of 1968, as
amended, to use assistance made available from the National Flood Mitigation
Fund for carrying out and planning activities designed to reduce the risk of
flood damage to structures covered under contracts for flood insurance. FEMA’s HMA Programs
include the Pre-Disaster Mitigation Program (PDM), a Hazard Mitigation Grant
Program (HMGP), and the Flood Mitigation Assistance (FMA) Program. The HMGP and
the PDM Programs provide assistance to State, tribal, and local governments for
hazard mitigation activities that are cost-effective and substantially reduce
the risk of future losses from major disasters. These HMA Programs are one way
FEMA supports mitigation against flooding and other disasters.
Prior to this
new FEMA policy, the 2013
HMA Unified Guidance stated that only “minor localized flood reduction
projects” are eligible for funding under the FMA, PDM, and HMGP. Further, the
guidance stated that “major flood control projects” related to the
construction, demolition, or repair of dams, levees, dikes, floodwalls, seawalls,
breakwaters, groins, jetties, and erosion projects related to the beach
nourishment or re-nourishment, are ineligible
activities under all programs (emphasis added). However, FEMA has now revised
the HMA Program guidance after a review of relevant legislation, regulations,
and policy to allow for the construction, demolition, or mitigation of dams,
dikes, levees, floodwalls, seawalls, groins, jetties, breakwaters, and erosion
projects related to beach nourishment or re-nourishment under the HMGP and PDM Programs.
Under all HMA Programs,
approval of an eligible project must not result in a Duplication of
Programs (DOP) with other federal agencies. This doctrine of Duplication of
Programs prohibits FEMA, or any other federal agency, from using its assistance
to fund projects or programs if funding for similar activities is available
under a more specific federal authority, unless there is an extraordinary
threat to lives, public health or safety, or unimproved real property. The DOP
issue is of particular concern in determining eligibility for flood risk
reduction projects because other federal agencies may be funding similar flood
risk reduction measures under more specific authorities. This new FEMA policy addresses
the DOP issue by speaking about how the DOP may affect the eligibility of HMA
flood risk reduction projects and how applicants may screen projects for
potential duplication prior to application.
HMA Programs are
established by Sections 203(PDM) and 404 (HMGP) of the Robert T. Stafford
Disaster and Emergency Assistance Act, 42 U.S.C §§5133, 5170c-(b)(2) and by
Section 1366 (FMA) of the National Flood Insurance Act of 1968 (NFIA), as
amended by the Biggert-Waters Flood Insurance Reform Act of 2012, 42 U.S.C
§4104c. The HMA Programs are also governed by Title 44 Code of Federal
Regulations (C.F.R.) Part 9, Part 10, Part 13, Part 59, Part 65, Part 79 (FMA),
Part 80, and Part 206, Subpart N (HMGP).
For more
information on FEMA’s Eligibility of Flood Risk Reduction Measures under the
Hazard Mitigation Assistance (HMA) Programs Policy, visit http://www.fema/gov/hazard-mitigation-assistance-policy.
