Public Notice - FEMA-4743-DR-La Jolla Band of Luiseño Indians

The U.S. Department of Homeland Security’s Federal Emergency Management Agency (FEMA) hereby gives notice to the public of its intent to provide financial assistance to Indian tribal governments under major disaster declaration FEMA-4743-DR-La Jolla Band of Luiseño Indians. This notice applies to the Public Assistance (PA), and Hazard Mitigation Grant (HMGP) programs implemented under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. §§ 5121-5207. FEMA is also providing public notice that funded activities may affect historic properties, may be located in or affect wetland areas or the 100- year floodplain, and/or may involve critical actions within the 500-year floodplain. Such activities may adversely affect historic properties, floodplain, or wetland areas, or may result in continuing vulnerability to flood damage.

I. Public Notice – Major Disaster Declaration and Overview of Authorized Assistance

The President declared a major disaster for La Jolla Band of Luiseño Indians on September 27, 2023, as a result of heavy rain, gusty winds, and flooding caused by Tropical Storm Hillary. during the period of August 19 to August 21, 2023, pursuant to his authority under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, Pub. L. No. 93-288 (1974) (codified as amended at 42 U.S.C. § 5121 et seq.) (Stafford Act).

This declaration, numbered FEMA-4743-DR-La Jolla Band of Luiseño Indians, has not authorized Individual Assistance. Pursuant to this major disaster declaration, FEMA-4743-DR, La Jolla Indian Reservation has been designated adversely affected by the disaster and eligible for Public Assistance Category A through G, and Hazard Mitigation Grant programs.

II. Public Notice – Assistance for Activities Located in or that Affect Wetlands Areas or Floodplains or that Affect Historic Properties

Some of the activities for which FEMA provides financial assistance under the Public Assistance and Hazard Mitigation Grant programs may affect historic properties, may be located in or affect wetland areas or the 100-year floodplain, and/or may involve critical actions within the 500-year floodplain. In those cases, FEMA must comply with Executive Order 11988, Floodplain Management; Executive Order 11990, Protection of Wetlands; the National Historic Preservation Act of 1966, 54 U.S.C. § 300101 et seq.) (“NHPA”); and the implementing regulations at 44 C.F.R. pt. 9 (Floodplain Management and Protection of Wetlands) and 36 C.F.R. pt. 800 (Protection of Historic Properties). The executive orders, NHPA, and/or regulations require FEMA to provide public notice for certain activities as part of approving the award of financial assistance for specific projects.

A. Federal Actions in or Affecting Floodplains and Wetlands

Presidential Executive Orders 11988 and 11990 require that all federal actions in or affecting the floodplain or wetlands be reviewed for opportunities to relocate, and evaluated for social, economic, historical, environmental, legal and safety considerations. Where there is no opportunity to relocate, FEMA is required to undertake a detailed review to determine what measures can be taken to minimize future damages. The public is invited to participate in the process of identifying alternatives and analyzing their impacts through this notification.

FEMA has determined that for certain types of facilities there are normally no alternatives to restoration in the floodplain/wetland. These are facilities that meet all of the following criteria:

1. FEMA’s estimate of the cost of repairs is less than 50% percent of the cost to replace the entire facility, and is less than $100,000;
2.  the facility is not located in a floodway or Coastal High Hazard Area; 
3. the facility has not sustained major structural damage in a previous presidentially declared flooding disaster or emergency; and
4.  the facility is not critical (e.g., the facility is not a hospital, generating plant, emergency operations center, or a facility that contains dangerous materials). 

FEMA intends to provide assistance for the restoration of these facilities to their pre-disaster condition, except that certain measures to mitigate the effects of future flooding or other hazards may be included in the work. For example, a bridge or culvert restoration may include a larger waterway opening to decrease the risk of future washouts.

For routine activities, this will be the only public notice provided. Other activities and those involving facilities that do not meet the four criteria are required to undergo more detailed review, including study of alternate locations. Subsequent public notices regarding such projects will be published, if necessary, as more specific information becomes available.

In many cases, an applicant may have started facility restoration before federal involvement. Even if the facility must undergo detailed review and analysis of alternate locations, FEMA will fund eligible restoration at the original location if the facility is functionally dependent on its floodplain location (e.g., bridges and piers), or the project facilitates an open space use, or the facility is an integral part of a larger network that is impractical or uneconomical to relocate, such as a road. In such cases, FEMA must also examine the possible effects of not restoring the facility, minimize floodplain/wetland impacts, and determine both that an overriding public need for the facility clearly outweighs the Executive Order requirements to avoid the floodplain/wetland, and that the site is the only practicable alternative. The State and local officials will confirm to FEMA that proposed actions comply with all applicable state and local floodplain management and wetland protection requirements.

The Public Assistance (PA) Federal Flood Risk Management Standard (FFRMS) partial implementation policy, effective for all major disasters declared on or after June 3, 2022, applies to PA projects in the 1% annual chance floodplain (1% and 0.2% annual chance floodplains for critical actions) involving new construction of structures, structures that have a substantial damage determination, or structures that require substantial improvement. The policy applies regardless of the cause of damage.

The Hazard Mitigation Assistance (HMA) FFRMS partial implementation policy applies to non-critical actions involving structure elevation, dry floodproofing, and mitigation reconstruction in the 1% annual chance floodplain. For all FEMA programs and project types, if a state, local, tribal, or territorial government has its own higher elevation standard, FEMA requires use of the higher standard. FEMA program policies also reference additional consensus codes and standards, such as ASCE-24-14, that incorporate additional elevation requirements beyond the base flood elevation.

B. Federal Actions Affecting Historic Properties

Section 106 of the National Historic Preservation Act requires federal agencies to take into account the effects of their undertakings on historic properties. Those actions or activities affecting buildings, structures, districts or objects 50 years or older or that affect archeological sites or undisturbed ground will require further review to determine if the property is eligible for listing in the National Register of Historic Places (Register). If the property is determined to be eligible for the Register, and FEMA’s undertaking will adversely affect it, FEMA may provide additional public notices if a proposed FEMA undertaking would adversely affect a historic property. For historic properties not adversely affected by FEMA’s undertaking, this will be the only public notice.

III. Further Information or Comment

The Rehabilitation Act of 1973 protects the civil rights of persons with disabilities. It prohibits discrimination on the basis of disability by the federal government, federal contractors, and by recipients of federal financial assistance. Any recipient or sub-recipient of federal funds is required to make their programs accessible to individuals with disabilities. Its protections apply to all programs and businesses receiving any federal funds. This applies to all elements of physical/architectural, programmatic and communication accessibility in all services and activities conducted by or funded by FEMA. FEMA intends to comply with the Rehabilitation Act in all federally conducted and assisted programs in alignment with the principals of whole community inclusion and universal accessibility.

Executive Orders 13985 and 14008 further address the need to achieve environmental justice and equity across the federal government. The issuance of the new executive orders more than 20 years after Executive Order 12898 was signed indicates the administration’s directive to federal agencies to renew their energy, effort, resources, and attention to environmental justice. FEMA is working with applicants/sub-applicants to identify communities with Environmental Justice concerns and provide an avenue for local groups and non-profits with an Environmental Justice mission to self-identify so FEMA Programs can start to work with them on specific projects from the beginning of the application process.

FEMA also intends to provide HMGP funding to La Jolla Band of Luiseño Indians to mitigate future disaster damages. These projects may include construction of new facilities, modification of existing, undamaged facilities, relocation of facilities out of floodplains, demolition of structures, or other types of projects to mitigate future disaster damages. In the course of developing project proposals, subsequent public notices will be published, if necessary, as more specific information becomes available.

As noted, this may be the only public notice regarding the above-described actions under the Public Assistance, and Hazard Mitigation Grant programs. Interested persons may obtain information about these actions or a specific project by writing to the Federal Emergency Management Agency, Region IX, 1111 Broadway, Suite 1200, Oakland, CA 94607. Comments should be sent in writing to Mary “Tess” Johnson, Environmental Advisor (EHAD), at the above address within 30 days of the date of this notice. The public comment period will be 30 days beginning on November 16, 2023, and concluding on December 18, 2023, at 4PM. Comments should be sent in writing within 30 days of the date of this notice.